by Jason Murphy | Sep 21, 2013
A case between a feuding ex-couple this week in Vancouver is raising eyebrows as well as an old legal problem: who gets the engagement ring if the wedding is called off?

Pasquale Zampieri has asked the B.C. Supreme Court for the return of a $16,500 ring he gave his fiancee, Jessica Bennett, after Bennett broke off their brief engagement. The former couple’s dispute continued outside the courtroom in front of the press, with Zampieri labeling Bennett a gold-digger and Bennett accusing Zampieri, among other things, of breaking a promise to give her one of his kidneys. The full story can be read here.

If recent British Columbia case law is followed, Zampieri should get the diamond back, subject to him proving that he paid for it. As Anna Wong notes in a excellent article in Lawyers Weekly published last year, BC courts have taken a straightforward contractual approach to these situations – unless there is agreement to the contrary,the ring should be returned “in order to put the couple back to the positions they were in before the engagement.”

The law in Ontario was somewhat different until recently. As Wong notes, one line of cases dating back to 18th century common law treated the ring as a conditional gift, the condition being that the recipient followed through on the promise to marry. In practice, this meant that the party who broke the engagement lost their right to claim the ring. The obvious downside of this approach is that it was ripe for litigation over who jilted who.

A second strain of Ontario cases treated the engagement ring as an unconditional gift. Once given, it could not be reclaimed.

Neither of these approaches quite aligns with s. 33 of Ontario’s Marriage Act, which holds that:

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.

The statute clearly contemplates conditional gifts, such as engagement rings, but dispenses with a fault-based analysis when determining the issue of their return.

Since Ms. Wong’s article, a recent case in the Ontario Superior Court of Justice has brought some clarity to this area and aligned Ontario’s law more closely with B.C.’s. In Newell v. Allen, Justice MacKinnon ordered an engagement ring returned from the intended wife to the intended husband, regardless of who had broken the engagement.

His Honour upheld the old common law notion of the engagement ring being a conditional gift. But he also found that the common law was now amended by s. 33 of the Marriage Act to remove consideration of fault for the broken engagement. He stated:

The common law provided that a gift given in contemplation of marriage was recoverable on timely demand if the donor was not responsible for ending the engagement. The Marriage Act has removed consideration of fault.

These cases have application beyond engagement rings, as modern engagements often entail more financial commitments than just jewelry. Engaged couples may purchase property with and for each other or may blend their finances before marriage. In a number of cases, like Newell v. Allen, the ring is simply the sparkling tip of the iceberg and disentanglement of the couple’s affairs can be as difficult and litigious as any other separation.

At a minimum, engaged couples should keep good records of who has paid for what. Preferably, a cohabitation or pre-marital agreement should address any significant purchases or blending of finances.

Jason Murphy practices family, civil and estates litigation at the law firm of Christie/Cummings in Collingwood. Please note that this article is only an overview and is not legal advice. Consult a lawyer before taking any action.