Marsha’s met Marc only 3 months ago. When she agreed to marry him she thought he was a wealthy entrepreneur. Instead, she found out that Marc only owned a small store and was barely making ends meet. When Marsha discovered her mistake she immediately started to date other men.
After Marsha agreed to marry him, Marc gave her a $20,000.00 diamond engagement ring. Soon after Marc caught Marsha on a date with another man. He demanded that she give back the engagement ring. She refused. In her mind the engagement ring was a gift. Marc sued. Who do you think should get the ring? Let’s see what the courts say.
In reviewing the case law, it seems that the most important factor for the courts was who broke off the engagement1. Applying this reasoning to our story, if the courts believed that Marsha’s dating other men constituted a breaking off of the engagement they would order her to give back the ring. In some cases the courts did not consider infidelity by the woman to constitute a breaking off of an engagement2. If that reasoning were applied here and the court felt it was Marc who ended the engagement then the court would allow Marsha to keep the ring. Academics criticized these decisions because, in their view, an engagement ring was a gift conditional on a marriage that did not take place and should be returned regardless of fault. That reading of the law is more consistent with section 33 of the Marriage Act which provides “Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift”3.
Whatever the husband’s rights may be to get the ring back the courts have also denied him the return of the engagement ring if he fails to ask for it because the delay seems to mean the ring changed from a gift conditional on marriage to an absolute gift.
In Okahai v. Sharify4 a judge ruled that the woman had to return the engagement ring This case and other like it5 were decided on the assumption that engagement rings were given in contemplation of marriage. Under these circumstances, there is an implied condition attached to the ring that the woman would marry him. The ring has the character of a pledge or something to bring the bargain or contract to marry and was given on the understanding, or the implied term, that a party who breaks the contract must return it. Since the women broke off the marriage she had to return the ring.
- See Marcon v. Cicchelli ( 1993), 47 R.F.L. ( 3d) 403 (Ont. Gen. Div.); Iliopoulos v. Gettas (1981), 32 O.R. (2d) 636 (Ont. Co. Ct.). ↵
- See paragraph 61 of McArthur v. Zaduk 2001 CarswellOnt 2117, 21 R.F.L. (5th) 142, 106 A.C.W.S. (3d) 380 ↵
- In an annotation on Marcon v. Cicchelli the late James McLeod who was Counsel, at Mamo & Associates, London, Ontario, and Professor of Law at the Univrsity of Western Ontario expressed the opinion that the Divisional Court of Ontario was wrong. In his view a gift is either conditional or absolute. If the gift is conditional and the condition is not met, then there is no gift and the property should be returned to the donor. He based his view on Hough v. Champagne (1991), 35 R.F.L. (3d) 27, 42 E.T.R. 252 ( Ont. Gen. Div.).and s. 33 of the Marriage Act. ↵
- Okahai v. Sharify (2004) O.J. No. 4186( Ontario SCJ). ↵
- Veitch (Trustee of) v. Rankin (1997), 41 O.T.C. 14, (1997) O.J. No. 4642 (Gen. Div.); Marcon v. Cicchelli (1993), 47 R.F.L. (3d) 403 at 407-408 (Gen. Div.): Hough V. Champagne (1991) O.J. No. 1322; 42 E.T.R. 252 (Gen. Div.); Iliopoulous V. Gettas (1981), 32 O.R. (2d) 636 At 639 (Co. Ct.); Seiler V. Funk (1914) O.J. No. 115; 32 O.L.R. 99 ( Ont. Ca); D’andrea v. Schmidt (2005) S.J. No. 290; 2005 Skqb 201; Q.B.G. No. 2166 Of 2002 J.C.R. (Saskatchewan Court Of Queen’s Bench). ↵