With spring right around the corner, jewellery companies are eager to advertise that now is the perfect time to give that special someone a gift from the heart. In some instances, this can be punctuated with the gift of an engagement ring and the promise of lifelong companionship.

However, in the family law context, if that promise is broken, one party may want their engagement ring returned. In those circumstances, sections 32 and 33 of the Marriage Act, R.S.O. 1990, c. M. 3 are particularly noteworthy:

Breach of promise of marriage abolished 32. (1) No action shall be brought for a breach of a promise to marry or for any damages resulting therefrom. R.S.O. 1990, c. M.3, s. 32 (1).

(2) Subsection (1) does not apply in respect of actions for breach of promise to marry or damages resulting therefrom commenced before the 1st day of August, 1978. R.S.O. 1990, c. M.3, s. 32 (2).

Recovery of gifts made in contemplation of marriage 33. 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. R.S.O. 1990, c. M.3, s. 33.

While s. 33 of the Marriage Act removes the fault element behind which party may have caused the marriage to not take place, MacKinnon J in Newell v. Allen, 2012 ONSC 6681 (CanLII) identifies the common law principles behind the return of engagement rings. In particular, MacKinnon J. found at paragraph 19, quoting from Iliopoulos v. Gettas 1981 CanLII 1703 (ON SC), 32 O.R. (2d) 636 (Co.Ct.), that:

“The origins of the engagement ring and the engagement in our law were outlined in Cohen v. Sellar, [1926] 1 K.B. 536, by McCardie J. At p. 547, he quotes with approval the conclusions of Shearman J. in Jacobs v. Davis, [1917] 2 K.B. 532 at p. 533:

‘Though the origin of the engagement ring has been forgotten, it still retains its character of a pledge or something to bind the bargain or contract to marry, and it is given on the understanding that a party who breaks the contract must return it. Whether the ring is a pledge or a conditional gift, the result is the same. The engagement ring given by the plaintiff to the defendant was given upon the implied condition that it should be returned if the defendant’ (i.e., the lady) ‘broke off the engagement. She did break the contract, and therefore must return the ring.’ It seems reasonably clear that Shearman J. impliedly held that if the plaintiff himself had broken off the promise he could not get back the ring.

He concludes at pp. 547-8:

This I hold to be the correct legal view. If a woman who has received a ring refuses to fulfill the conditions of the gift she must return it. So, on the other hand, I think that if the man has, without a recognized legal justification, refused to carry out his promise of marriage, he cannot demand the return of the engagement ring. It matters not in law that the repudiation of the promise may turn out to the ultimate advantage of both parties. A judge must apply the existing law as to the limits of justification for breach.”

Thus MacKinnon J. held, at paragraph 22, that “a gift given in contemplation of marriage was recoverable on timely demand if the donor was not responsible for ending the engagement.” Further, MacKinnon J. ordered that the Applicant return the engagement ring to the Respondent because:

  • The diamond engagement ring was given on the occasion of the parties’ engagement in contemplation of marriage;
  • The Applicant confirmed in a handwritten note her acceptance of the Respondent’s marriage proposal;
  • The Applicant terminated the relationship;
  • Although it was a long engagement neither party asserted a decision was made to abandon the idea of marriage in favor of long-term cohabitation; and
  • The Respondent included a demand, in his Answer, requesting the return of the engagement ring which, in MacKinnon J.’s view, was a timely enough request for the return of the engagement ring.

While a case surrounding the return of an engagement ring remains a thorny business at best, it depends entirely on the facts whether one party will have the opportunity to have their engagement ring returned. Once again, it appears that a diamond is certainly not forever.

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Andrew Sudano

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Andrew Sudano