Bob and Lena had been dating for about two years. During the relationship, Bob bought Lena an iPhone, a few expensive wigs, jewellery and other personal items. He was generous, and Lena was happy to receive the gifts. At some point, however, things began to fall apart. After several disagreements, the relationship eventually ended.
But Bob was not quite ready to let go. He wanted his things back. He insisted that the iPhone, the wigs and some of the other expensive items he had bought for Lena be returned. Lena, naturally, disagreed. She considered the items gifts freely given to her during the relationship. Why should she return them simply because the relationship had ended?
It is a familiar situation. Sometimes, the disagreement concerns an expensive phone or a wig. On other occasions, it involves an engagement ring, jewellery, furniture or even an entire collection of items purchased in preparation for a wedding. But does the law permit someone to recover gifts given to a former partner? More importantly, does it matter whether the parties were merely dating or had actually contemplated marriage? The answer lies, in part, in the nature and circumstances of the gift.
Not Every Gift is Recoverable
For starters, it may be said that a gift freely made and accepted does not ordinarily become recoverable merely because the relationship between the donor and recipient has come to an end. A person who buys their partner an iPhone on a birthday, pays for a wig as a Christmas present or purchases jewellery simply to express affection does not automatically retain a legal right to reclaim those items when the relationship breaks down.
The law distinguishes between gifts made to a person in their individual capacity and gifts made in contemplation of marriage. This distinction is important because the latter category may be subject to conditions arising from the contemplated marriage.
The relevant question is not simply whether the parties were in a relationship when the gift was made. It is whether the gift was made to the recipient as an individual or in their anticipated capacity as the donor’s future spouse.
That is a question of fact, to be determined from the circumstances surrounding the gift, including the intention of the parties.
When the Gift is Made in Contemplation of Marriage
A gift made in contemplation of marriage is one given on the understanding that the parties intend to marry and that the gift is connected with that anticipated union.
An engagement ring is perhaps the most familiar example. Furniture purchased for a matrimonial home may also fall within this category. The same may apply to other valuable items acquired specifically in preparation for the marriage.
The law has long recognised that such gifts are not necessarily unconditional. Their continued enjoyment may depend on the marriage taking place.
In Jacobs v Davis [1917] 2 KB 535, Shearman J held that a woman who had broken the contract to marry was required to return the engagement ring. The ring was regarded, in substance, as a pledge given on the understanding that the marriage would take place.
The position, however, is not one-sided. In Cohen v Sellar, the Court considered a situation in which it was the man who had wrongfully refused to proceed with the marriage. The court held that he could not recover the engagement ring. Having broken the marriage agreement himself, he could not rely on that breach to reclaim the gift.
The principle emerging from these authorities is that a party who wrongfully breaks the engagement cannot ordinarily recover a gift made in contemplation of the marriage merely because the marriage did not take place. In other words, the circumstances surrounding the breakdown of the engagement matter.
What if Neither Party is Responsible for the Breakdown?
There may also be situations in which the parties mutually agree not to proceed with the marriage. Equally, the marriage may become impossible because of the death or a legally recognised disability of either party. In such circumstances, gifts made in contemplation of marriage are generally returnable, in the absence of an agreement to the contrary.
The position is different where the marriage takes place. Once the contemplated marriage has been solemnised, the gifts ordinarily vest absolutely in their recipients. A subsequent divorce or dissolution of the marriage does not, without more, entitle the former spouse to reclaim gifts given in contemplation of that marriage.
The distinction is understandable. The condition upon which the gift was made has been fulfilled.
What Does Ghanaian Law Say?
The principles are not merely theoretical. Ghanaian courts have had occasion to deal with disputes involving promises to marry and property transferred in anticipation of marriage.
In Gyan v Antwi [2024] GHACC 107, the court considered a dispute arising from an agreement to marry which did not materialise. Among the items claimed by the plaintiff were articles purchased towards the marriage ceremony. The court ordered the return of the kente, white lace and native sandals which the defendant admitted receiving for the contemplated marriage.
The decision is particularly instructive. It demonstrates that items given or acquired specifically towards a marriage that ultimately does not take place may be recoverable. It also illustrates the importance of evidence. The court declined to grant the plaintiff’s wider monetary claim for items whose purchase and value had not been sufficiently established.
An earlier authority, Kwame Addo v Adjoa Duko, also concerned the return of a necklace given in anticipation of marriage following the breakdown of the relationship.
These decisions must, however, be understood in their proper context. They do not establish that every item purchased for a romantic partner must be returned when the relationship ends. The character and purpose of the gift remain important.
Post-Marriage Situations
An interesting question also emerges where the marriage takes place, but one party leaves shortly afterwards?
Suppose Bob gives Lena an expensive engagement ring and other valuable items in contemplation of marriage. Lena accepts the gifts, proceeds to marry him and, shortly after the wedding, initiates divorce proceedings. Can Bob now demand the return of the gifts on the ground that Lena never genuinely intended to remain married to him?
Ordinarily, the answer would be no. The fact that the marriage subsequently ends does not, by itself, undo the gifts. The contemplated marriage took place, and the condition attached to the gifts was fulfilled.
But what if Lena had entered into the marriage from the very beginning with a dishonest intention to obtain the gifts and subsequently abandon the marriage? That circumstance may raise a separate question of fraud. If the fraud is proven, gifts given may be recoverable. The distinction is between a marriage that unfortunately breaks down and one allegedly entered into as part of a deliberate scheme to deceive the other party. They are not the same thing.
Ultimately, the law considers factors such as the purpose of the gift, the intention of the parties and the circumstances in which the anticipated marriage failed to determine whether the gift is recoverable.
