Best Wil­son Buck­ley’s solic­i­tor Sa­man­tha Iw­ers gives some in­sight into engagements and de facto re­la­tion­ships

Style Magazine - - Legal -

When we look at the old col­lo­qui­al­ism that the en­gage­ment ring should be worth about three months’ salary, you can’t help but won­der what hap­pens to the ring if the wed­ding doesn’t go ahead.

Firstly, if the cou­ple are found to be in a de facto re­la­tion­ship, the Fam­ily Law Act will ap­ply.

For the pur­pose of prop­erty set­tle­ment, a de facto re­la­tion­ship ex­ists when the cou­ple meets one of the fol­low­ing four gate­way cri­te­ria:

The du­ra­tion of the re­la­tion­ship was at least two years

The cou­ple have a child from their re­la­tion­ship

The re­la­tion­ship is or was reg­is­tered, or

A party has made sig­nif­i­cant con­tri­bu­tions to the prop­erty or fi­nances of their part­ner.

In cir­cum­stances where a de facto re­la­tion­ship ex­ists, an en­gage­ment ring that holds greater than sen­ti­men­tal value would form part of the prop­erty pool.

When con­sid­er­ing how the prop­erty pool is dis­trib­uted, the Court will take into con­sid­er­a­tion a num­ber of fac­tors in­clud­ing the length of the re­la­tion­ship, each par­ties’ fi­nan­cial and non-fi­nan­cial con­tri­bu­tions, the fu­ture needs of each party, and whether the pro­posed di­vi­sion is just and eq­ui­table.

If the cou­ple are not found to be in a de facto re­la­tion­ship, the Fam­ily Law Act would not ap­ply, and the prin­ci­ples sum­marised in the mat­ter of

Pa­p­athana­sopou­los v Va­copou­los (which dealt with an en­gage­ment ring worth $15,250) would guide the ap­proach as fol­lows:

If a woman re­ceives an en­gage­ment ring in con­tem­pla­tion of mar­riage and re­fuses to ful­fil the con­di­tions of the gift, she must re­turn the ring

If a man re­fuses to carry out his prom­ise of mar­riage, he can­not de­mand the re­turn of the en­gage­ment ring; and

If the par­ties mu­tu­ally con­sent to the en­gage­ment end­ing, and there is no agree­ment other­wise, the en­gage­ment ring must be re­turned.

The out­come seems to turn on who breaks off the en­gage­ment, which is clearly in­con­sis­tent with the Fam­ily Law ap­proach of ‘no-fault di­vorce’ that would ap­ply if the cou­ple were in a de facto re­la­tion­ship, or were to ac­tu­ally tie the knot but sub­se­quently sep­a­rate.

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