Whether a couple separates over an unfaithful spouse, because of mutual disinterest, or for economic reasons, one question remains pertinent: who should keep the engagement ring on divorce?
By Evie Jeang, Family Lawyer
“One (Engagement) Ring to Rule Them All”
There is no doubt that going through a divorce is a difficult process. It wears individuals down financially, emotionally, and physically. A common area of contention in divorce is the very symbol of the marriage itself: the engagement ring. This is understandable, as what was once a symbol of the excitement of what the future may hold now becomes a painful reminder of the past.
Regardless of any sentimental value, the engagement ring is by itself an asset – and usually a costly one at that. Like all assets, the engagement ring is one that needs to be dealt with upon divorce.
So – Who Should Keep the Engagement Ring on Divorce?
1. A Brief Historical Overview of the Engagement Ring
First-century AD Roman wedding ring (iron with carnelian intaglio of clasped hands).
The engagement ring is an ancient and symbolic tradition that can be reliably traced back to the ancient Egyptians and Romans.
Marriage engagements would be marked with a ring (Anulus Pronubus) from the groom to his fiancée. While these betrothal rings were initially made of iron (symbolizing strength and permanence) and remained unornamented, later rings were made with precious metals, and even later rings would be adorned with jewels and engraved – often with images of clasped hands.
In the 650s AD, the Visigothic Code was established into law. This is the first codified set of laws that applied to the entire population, the majority of which still largely had Roman roots. The Visigothic Code required that “when the ceremony of betrothal has been performed… and the ring shall have been given or accepted as a pledge, although nothing may have been committed to writing, the promise shall, under no circumstances, be broken.” Here, we see the continuance of the tradition of the engagement ring from the ancient Romans into early historical times, and not only is it continued, but it is codified into law as well.
By the mid-9th century, the practice of giving an engagement ring had grown such that Pope Nicholas I cited the tradition as a primary difference between the Roman Catholic and Eastern Orthodox religious practices. The tradition of giving an engagement ring would then be further ingrained into society during the Fourth Council of the Lateran (a large gathering of the medieval papacy to make political and ecclesiastical decisions) of the early 13th century. Here, the “banns of marriage” were initiated, which disallowed secret weddings and required all weddings to be publicly announced. This enforced the notion of a public engagement, and consequently, continued to popularize the gift of an engagement ring.
In 1477, Archduke Maximilian of Austria commissioned a betrothal ring with small diamonds in the shape of an “M” for Mary of Burgundy. This is the first recorded instance of someone proposing marriage with a diamond ring.
The historical tradition of a diamond engagement ring is credited to the Archduke Maximilian of Austria during the Renaissance in the late 15th century. Maximilian I of the Habsburg family (the most influential and distinguished house of Europe during that time) ruled the Holy Roman Empire with great military strength, but he possessed little wealth toward the end of the 15th century. Mary of Burgundy (more commonly known as Mary the Rich) was an heiress to the late Charles the Bold, who had tragically died in the Battle of Nancy during the mid-15th century. As a result of her father’s death, Mary held vast territories in what is now eastern France.
Having wealth, but lacking military strength, Mary’s engagement with Maximilian I was a perfect fit. In order to attain the hand of Mary of Burgundy, Maximilian I proposed with a betrothal ring consisting of diamonds in the shape of an M. Having witnessed this grand gesture to consolidate two grand powers of Europe, the nobles and the aristocracy during this time began imitating the practice of giving a diamond engagement ring.
The practice of giving a ring to signify engagement would continue through the Protestant Reformation and Age of Enlightenment, where tradition still dictated the use of simpler engagement rings, and diamond rings were reserved primarily for the wealthy nobility and aristocrats.
The discovery of massive amounts of diamonds in South Africa during the Victorian Era in the mid- to late 19th century led to an influx of diamonds into contemporary society, thereby reducing prices and making the purchase of a diamond engagement ring possible for many.
In 2018, Business Insider reported that Americans are spending an average of $6,351 on an engagement ring – a very costly asset. With the CDC reporting over 2 million marriages and 800,000 divorces per year in the United States alone, who should keep the engagement ring on divorce is a common issue.
2. What the Engagement Ring Means
While the tradition of giving an engagement ring is not in dispute, scholars are in disagreement about the meaning behind the ring.
A Roman marriage ring with clasped hands. “OMONOIA” means “Concord” or “Harmony.”
With the ancient Romans, scholars postulate differing and distinct meanings of the engagement ring that reveal ancient ideological values of marriage. Is the engagement ring merely a gift, is it is a symbol of love, or is it representative of some type of legally binding agreement?
At the outset, scholars believed that the imagery of the clasped hands engraved onto ancient Roman wedding rings invoked the idea of a marital agreement. It was common practice for fathers to sell their daughters for marriage at an agreed-upon price. Thus, marriage agreements were commonly made between two men: the groom-to-be and the bride’s father. Consequently, there is also the line of belief that the groom may have offered the engagement ring as a gift to embody the agreement of marriage and additional responsibilities that come with it.
Other scholars note the clasped hands imagery in other ancient societies. One such example is in Grecian funerary art, wherein the clasped hands symbolize departure after death. This has led some scholars to believe the imagery symbolizes both a bond during life and a farewell in death – reminiscent of the poignant vow “until death do us part.”
As the tradition continued to develop in ancient Rome, the engagement ring became synonymous with the wedding itself, thus embodying the gift of the ring, the love that it represents, and the agreement to marry.
In contemporary times, society views the engagement ring as a gift of varying degrees. The remedies allotted to the gift-givers depend largely upon the state of residence.
3. Who Should Keep the Engagement Ring?
Most states treat the engagement ring as a “conditional gift.” This means that the receiving party is allowed to keep the ring on the condition that the marriage occurs. Should the marriage not occur, the receiving party must return the ring. States that abide by this rule include Iowa, Florida, Kansas, Michigan, Minnesota, New Jersey, New Mexico, New York, Pennsylvania, and Wisconsin.
In the state of Montana, engagement rings are treated as “unconditional gifts.” This means that the receiving party will be allowed to keep the ring no matter what.
In California, along with Texas and Washington, the engagement ring is treated as an “implied conditional gift.” Simply put, this means that if the other party backs out of the wedding, then the non-backing party will be allowed to keep the ring.
More specifically in California, Civil Code Chapter 3 Section 1590 provides that “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 [receiver] refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the [giver] 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.”
The language of the California statute states that any gift made in anticipation of marriage can be recovered by the giver in the event that the receiver no longer wants to become married or both the giver and receiver agree not to get married. Thus, if we consider the engagement ring a to be a gift, then this statute would entitle a groom to recover his engagement ring if his fiancée backs out of the engagement or if they decide not to get married.
On the other hand, the landmark case of Simonian v. Donoian set a precedent that allows the receiver of the gift to keep that gift if the wedding is called off by the giver. In pertinent part, the California Court of Appeals found that “the clear meaning of [Section 1590] is that the [receiver] of an engagement ring is entitled to retain possession thereof when the marriage contract is breached by the [giver] without any fault on [receiver’s] part.” Thus, a fiancée would be entitled to retain possession of the engagement ring if the groom calls off the wedding unilaterally.
Additionally, there is some precedent in the instance where the engagement ring is considered a family heirloom. The Court of Appeals of Oregon found in the case of In re: Domestic Partnership of Ewing that the giver of a family heirloom ring was entitled to receive that ring back after separation. However, it is always highly advised that future husbands and wives draft a prenuptial agreement when a family heirloom is involved.
Ultimately, the law is shallow on who should keep the engagement ring on divorce if the marriage is terminated at the fault of the giving party’s actions, such as an affair. There are arguments yet to be explored – the existence of common law marriage and contractual marriage lend credence to the notion that the engagement ring can symbolize some type of agreement, just as it did with the ancient Romans.
Evie Jeang is the founder and CEO of Ideal Legal Group, a boutique family law firm, and Surrogacy Concierge, LLC, a full-service agency for the surrogacy and fertility needs of growing families. An attorney licensed to practice law in California and New York, she has over 15 years of experience in the areas of international family law and surrogacy law. www.ideallegalgroup.com
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