Author: Sarah Hogarth

What happens when the magical once upon a time, does not end happily ever after?

Before the Family Law Act 1981 came into effect, the happy announcement of an engagement was considered to be a legally binding contract. If the engagement was called off without any lawful justification, the person responsible for withdrawing could be sued for damages for breach of promise. 

Whilst this is no longer the law, there are still many issues resulting from the breakdown of such a relationship. It is important to note that whilst engaged couples do not enjoy the same rights as married couples, even though the concerns and issues resulting from the fallout can be similar, they are afforded some unique enhanced protection, as simply compared to cohabiting couples.

Who keeps the ring?

The law is clear on who keeps the ring. S3(2) of the Law Reform (Miscellaneous Provisions) Act 1970, confirms that an engagement ring should be regarded as an absolute gift, unless there is clear evidence to show that it was agreed to be returned in the event of the relationship ending. 

If the ring is a treasured family heirloom, a court may be more likely to be persuaded that there was an implied intention that it be returned if the relationship ended, but this is by no means guaranteed. Therefore, it is always prudent to record this in writing at the outset, however unromantic it may seem.

Engagement gifts from third parties

There is a presumption that any gifts provided to the happily engaged couple are gifted jointly, absent any evidence to the contrary. In circumstances where the couple unfortunately don’t make it down the aisle, it is unlikely that they will have friends and family banging on their door demanding the return of an air fryer or decorative throw for what was to be the new family home. However, there may be circumstances where family members have gifted substantial financial contributions towards proposed renovations to the new home, or perhaps indeed towards a deposit for a new home. In such a situation, that third party may be able to seek financial remedy through the court. 

Costs associated with the wedding

Depending on how advanced wedding plans were and how close the couple were to the big day, in many cases it is likely that significant sums may have been incurred. The wedding venue, the catering, the photographer/videographer, the band, the dress, the makeup artist, the suits, the cake, the honeymoon; the list goes on and it certainly all adds up. 

For a couple who have met each of these expenses jointly, their only likely recourse is to read the fine print of the contracts with the various suppliers to assess whether there is any chance of a percentage refund of the costs already incurred. 

In circumstances where one party has footed the majority of the deposits and bills, the paying party may struggle to recover the sums incurred from the other aggrieved party, especially in the absence of any clearly documented agreement. The same applies in more traditional settings where the bride’s family may have paid for various expenses towards the wedding and are now seeking compensation from the groom’s side. 

What happens to the house we have bought together?

There is no such thing as a “common law marriage”. Whether the couple have been together for five months, five years or fifty years. 

Unmarried couples often rely on the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”) should any property dispute arise. This allows a person with a potential beneficial interest in a property to have the nature and extent of their interest assessed and determined by a court, which may result in a number of orders, including an order for sale.  TOLATA proceedings can be both time consuming and costly and largely turn on the veracity of the evidence provided by the parties. 

Importantly, whilst engaged couples do not enjoy the same legal protections as married couples, many are not aware that they do have some enhanced protection as compared to non-engaged cohabiting couples:

  • S37 of the Matrimonial Proceedings and Property Act 1970

A formerly engaged party may make a claim for an interest in a property where there has been:

  • a contribution in money or money’s worth (i.e. paying a builder or undertaking such work yourself);
  • to the improvement of a “substantial nature” to real or personal property;
  • provided such contribution can be seen to have enlarged both parties’ shares.

However, this claim would be subject to any agreement advanced by the other to the contrary, either express or implied. 

  • The Law Reform (Miscellaneous Provisions) Act 1970 and the Married Women’s Property Act 1882

Most of The Married Women’s Property Act has been repealed. However, S2(2) of the Law Reform (Miscellaneous Provisions) Act 1970 affirms the application of S17 of the Married Women’s Property Act 1882 to formally engaged couples, providing declaratory relief for ownership of property and personal possessions (such as cars, jewellery etc). Crucially, any claim must also be brought within three years of the engagement ending. 

Protection and prevention

Where engaged couples own significant assets together or gifts have been made in the anticipation of the future happy couples’ big day, they may consider it sensible to enter into a pre-nuptial agreement. Whilst many liken pre-nuptial agreements as an insurance policy for divorce, the agreement may also make provision for what will happen to such property and gifts, as well as wedding expenses, should the wedding not go ahead. 

Similarly, if the couple envisage a longer engagement period, they may consider entering into a cohabitation agreement; again, to record how the assets will be dealt with both during the relationship and, more importantly, upon any breakdown of the relationship. 

In the merriment of a new engagement and the excitement of wedding planning, unromantic practicalities are usually, understandably, not at the top of the priority list. However, where there are assets to protect, prevention is always better than cure.

https://thoughtleaders4.com/images/uploads/news/TL4_HNW_Divorce_Issue_16_-_February_2024.pdf

Sarah Hogarth
Senior Associate at Edwards Family Law