CURRENT CALIFORNIA LAW
In California we turn to a law dating back to 1939 which specifically addresses engagement rings and other gifts in contemplation of marriage–Civil Code section 1590; it states:
Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just.
In this case the “donor” is the person (i.e., the man) giving the engagement ring, and the “donee” is the person (i.e., the woman) receiving it. A gift in contemplation of marriage can be revoked, unlike other gifts. Thus, California law is very clear on what happens to the ring – if the woman calls off the wedding, it goes back to the man. Also, if both parties agree that the wedding is off then the man gets the ring back.
This California law has wide ranging impact for property given in contemplation of marriage. In an important case on the subject – Shaw v. Shaw (1964) 227 Cal.App.2d 159, a man and woman lived together for four years. He placed her name on real property because he relied on her promise that she would marry him when her divorce was final. The couple separated before marrying and the woman eventually married another. The court awarded all property back to the man because she failed to marry him. This has an impact on our society today because of the number of couples living together before marriage.
WHAT IF THE MAN CALLS THE MARRIAGE OFF?
It seems to be implied by the law that the man would not receive the ring back because he called the marriage off. This is the assessment of a rather old case, which is still good law, holding that: “the clear meaning of the quoted statute is that 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.” Simonian v. Donoian (1950) 96 C.A.2d 259.
HOW CAN A PRE-NUP HELP?
We often hear in celebrity divorce cases how the engagement ring is frequently referenced in a pre-nup and that it goes back to the woman, as in the divorce case of Khloe Kardashian where she was able to keep her one million dollar engagement ring. See Hollywood Life by Bonnie Fuller (Dec. 13, 2013) http://hollywoodlife.com/2013/12/13/khloe-kardashian-prenup-lamar-odom-divorce-split. But is it really necessary to put it in the pre-nup?
The answer is: not really. Once the parties are legally married, then the conditions of California law regarding giving the ring back do not apply. Civil Code section 1590 deals with what happens if a marriage is called off. If there is a marriage, then the terms of giving the ring are satisfied, and it becomes the sole property of the woman and it is not necessary for her return it to the man. However, it is always the best practice in a pre-nup to include who owns all the property, so as to make it complete and without any ambiguity. Such as in the case of a million dollar ring – who wants to make that mistake?
It may also be useful to have language in a pre-nup that the woman should not get to keep a costly ring, should certain things happen in a marriage. For example, a man could ask that an expensive million dollar engagement ring go back to him should the woman be found to be unfaithful during the marriage.
WHAT IF HE CHEATS ON ME BEFORE WE ARE MARRIED?
The parties can enter into a contract before marriage, such as a pre-marriage agreement between the prospective spouses that would specifically be made enforceable before a marriage. Such a scenario might cover if the man is unfaithful, then the woman should be able to keep the engagement ring, even if she calls off the marriage before they are legally married because she finds out that he has been unfaithful to her.
Without this type of protection under California law, there is no clear authority that states that a woman who finds a man to be unfaithful and calls off the marriage would be entitled to keep the ring. Her only protection is if it is in a pre-marriage agreement in writing. Of course, this would take all the romance out of the moment; but from a legal standpoint this would be the only way to clearly allow a woman to keep the ring based on the bad-faith conduct of the man during the engagement period if she calls off the marriage.
WHAT IF THE ENGAGEMENT RING IS GIVEN ON A SPECIAL DAY?
Many couples want to enhance the romance by popping that question on a special day – such as a birthday, a holiday, Christmas, New Year’s Eve, or the most romantic holiday of all – Valentine’s Day.
California law makes a special exception to the general law surrounding gifts in Civil Code section 1590: if the gift is given in contemplation of marriage, it must be returned in certain cases if there is no wedding. However, if the engagement ring is given as a gift for a special day such as a birthday, or Christmas, or even Valentine’s Day–then there becomes a question if it was truly an engagement ring or a gift. If the engagement ring is given as a gift and the woman calls it off or both parties call it off, then she would not have to give the ring back if it was a gift.
In another case a man gave a woman an engagement ring and on the same day his mother gave the woman a diamond watch. On the surface, it would appear that both gifts were engagement gifts for the woman to marry the man. Simonian v. Donoian (1950) 96 Cal.App.2d 259, 262. The facts from Simonian state that right after the man gave her the engagement ring, his mother pulled a wrist watch set with diamonds and said “This is from dad and I.” When the woman called the marriage off, she had to give the ring back, but she got to keep the watch because it was considered a gift from the parents.