An Australian man has taken legal action against his ex to recover the cost of the engagement ring he gave to her.

The Canberra man lodged the case with the ACT Civil and Administrative Tribunal, where he argued that she failed to return the engagement ring and other gifts after they broke up.

The couple were engaged in April 2015, after meeting in Melbourne “in chaperoned circumstances".

The man had contacted the Melbourne woman and her parents with a view to marriage in late 2014.

The couple and both of their families agreed they would be married.  In May, an engagement party was arranged.  Gifts were given at this ceremony, including the engagement ring.

Unfortunately, the new couple got off to a rocky start, partly due to disagreements between the two over where they would live. Their relationship problems were insurmountable and the relationship ended after only five months, in October, 2015.

The tribunal heard from the woman that the Canberra man did "not keep his word to re-locate to Melbourne" and "he did not inspect wedding venues".

After the engagement failed, the man said he asked the woman to return the ring and a number of other gifts she and her family had received.

He claimed the items were never returned and this, he says, prompted him to take the case to ACAT to recover the costs to him and his family.

 

The Law

Under the Marriage Act, a person can no longer sue for damages linked to social or economic loss arising out of a breach of a promise to marry.

But the law doesn't apply to gifts given in anticipation of a marriage, meaning a person can try to recover an engagement ring, or its monetary value, if the recipient has broken off the engagement.

Historically in Australia the Courts would typically require the return of the engagement ring.  If the gift of the ring was made in contemplation of marriage and the marriage did not proceed then the ring giver is entitled to the return of the ring (Davies v Messner [1975] 12 SASR 333 and Cohen v Sellar [1926] 1 KB 236).  From the recipient’s point of view, it is the Court’s position that in instances where the wedding did not proceed retaining the ring would be unconscionable (Muschinski v Dodds (1985) 160 CLR 583).

These days, the view of the court seems to have changed to reflect the vast number of couples who do not follow the traditional practice of engagement, then marriage and then finally moving in together.  So, this couple, who don’t fall within the definition of a de facto relationship will find that there is no current governing legislation. 

They are left with very old case law dealing with concepts usually beyond the normal scope of family law such as contract and constructive trusts which are dealt with in the State Courts.  The past cases which have dealt with engagement rings in this context may not necessarily reflect the current view of the Courts, according to Tindall Gask Bentley Lawyers, South Australia’s largest family and divorce law firm.

For this particular case to be successful, there would need to be a clear breach of the promise by one party and that breach would also need to have occurred in the ACT.

The man's matter went to a hearing to decide whether the tribunal had jurisdiction to handle the case.

 

A 'mutual recognition of an unhappy state of affairs'

Senior ACAT member Graeme Lunney said when the former couple ended their relationship during a phone conversation last October, they were "two people in a decaying relationship unable to find a way forward any further".

The two disagreed about who had ended the relationship. The engagement failed after "unhappy differences arose over which there is great controversy", said Mr Lunney.

"In my view there was not a unilateral withdrawal by one party in breach of a prior promise, but a recognition by two people that their relationship had reached a tipping point, and in the absence of any further action was over.”

"Consequently, in my view there was no 'breach' that occurred in the ACT which would give this Tribunal jurisdiction in the proceedings brought by the applicant," Mr Lunney said.

"It was mutual recognition of an unhappy state of affairs that was beyond repair.

"In those circumstances the Tribunal lacks jurisdiction to adjudicate the dispute."

It was this lack of breach occurring specifically in the ACT, that lead him to find that ACAT did not have the jurisdiction to deal with the case.

He said any further attempts to recover the cost of the engagement ring or other gifts would have to be pursued in Victoria.

Mr Lunney dismissed the man's application. And, no doubt adding to the applicant’s financial woes, the parties were ordered to bear their own legal costs.

 

35 Carat Diamond enagement ring given to Mariah Carey at the start of their 7 month engagement.

 

It's a different story for Mariah Carey

Mariah Carey is reportedly keeping her famous 35 Carat diamond engagement ring after she split from James Packer.  The engagement lasted just 7 months but it seems Carey doesn't agree with the 1985 Australian Family Court judge's position that "retaining the ring would be unconscionable".  After initially joking in an interview with Reuters, 'It's hideous! Take it away! I was insulted,' Mariah seems to have changed her tune and warmed to the ring.  She likes it enough to continue wearing it, even thought the couple split several months ago.

USWeekly reported a source close to Carey as saying, "he's not going to make her give the ring back because it's against the law." 

The law in California would see her returning the monster ring valued at around six million dollars had she called off the engagement.  The ‘source close to Carey’ continues, “she had every intention of marrying him — she had a dress, her daughter had a dress, they were excited, they were making wedding plans. Then, on the last day [of their Greek vacation], he said, 'I can't do this anymore, this is just too much.'"  So, she gets to keep the ring.  She's also asking for $65 million as an 'inconvenience fee'.

According to the 1950 California case Simonian v. Donoian, "the donee (i.e., the woman) of an engagement ring is entitled to retain possession thereof when the marriage contract is breached by the donor (i.e., the man) without any fault on donee's part."

 

Mariah stands to make a hefty sum

Celebrity jeweller, Tobias Kormind, managing director of 77 Diamonds, suggested to the Daily Mail Australia that Mariah would be able to earn a premium on the cost price of her ring if she chose to sell it.  

‘If Mariah now wants to spite her fiancé James Packer for dumping her, she might just sell her engagement ring and bag the money – given her celebrity status, jewellery she has owned is likely to fetch a premium if it comes on the market,' he explained.

The ring valued at around $AU10 million could realistically fetch a lot more.

Published by, Christine Weston
Divorce Resource
15th November, 2016

 

 

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