The tug of war for Trustees in Divorce
In financial proceedings on divorce, all personal belongings exceeding £500 in value must be disclosed and it is therefore expected that items such as jewellery, watches, cars, paintings, furniture and electrical items are listed by each party in their financial statement.
These items can be seen as a financial resource of the parties, particularly where their value is significant in the context of the overall assets of the case. Generally however, if the parties have valuable belongings, their other assets are usually significant enough to mean that the court will be able to ignore the belongings (sometimes called “chattels”) when dividing the capital. Parties will therefore not usually be expected to give up or sell sentimental items in order to, for example, provide additional cash upon which to live, and normally they are just left to agree who should keep what.
It is usually relatively easy to agree who owns which individual items and anything joint (such as furniture at the family home) is then divided by agreement. However, there may be circumstances in which a spouse who feels aggrieved seeks the return of certain gifts, or argues that certain items were not gifted at all.
Engagement rings are presumed to be absolute gifts unless they are given on the condition that they will be returned for a specific reason or in specific circumstances. For example, a ring may be given on the condition that it will be returned if the marriage does not actually end up taking place (who said romance was dead?).
In the very few reported cases, the couples involved never actually went ahead with the marriage and the party claiming the return of the engagement ring has been unable to prove that verbal conversations took place in which this condition was stipulated. For divorcing couples, it is difficult to anticipate many situations where one party could justify the return of the engagement ring (or any gifts for that matter, as set out below) and so it will normally remain with the recipient following the divorce.
A party cannot seek the return of a gift they made to their spouse during the marriage unless it was given subject to a condition - for example, that it would be returned in the event of a breakdown of the relationship. The party seeking the return of certain gifts would have to prove that the condition was stipulated and this would be hard to do if, as is likely to be the case, it was discussed verbally. The existence of text messages showing that this was a stipulation may be more persuasive, or if the condition was set out in a written agreement or included in a pre/postnuptial agreement.
In an exceptional case, one party may argue that they did not in fact gift a specific item at all and claim that it still belongs to them. For a gift to be made there must be: 1) an intention to make an immediate gift; and 2) delivery of the item. These elements are often easily inferred from the circumstances of the delivery (for example, a ring or bracelet presented by one spouse to another for a special occasion or anniversary). However, a husband throwing a white miniature pedigree poodle towards his wife while shouting “She’s your responsibility now!” is not enough to constitute a gift being made – there needs to be intention behind it (and yes, those are real facts from one reported case in the 1960s). Broadly speaking, unless there are exceptional circumstances, the giving of a gift from one spouse to another is unlikely to be successfully challenged.
Gifts from relatives or friends of one spouse are generally taken to be gifts to that individual spouse (unless it can be shown that they were intended to be to the other spouse or a joint gift) and will remain with them on divorce. This applies to wedding gifts as well as gifts given to the parties throughout the marriage.
Heirlooms are items which are passed down through generations of families and, given their nature and source, they can be treated differently on divorce. Where most personal belongings are not taken into account in the division of assets, heirlooms can be as they are often valuable.
‘Sharing’ is one of the key principles applied by the court when determining the division of assets which essentially means that assets built up during the marriage should be shared equally unless there is a reason which justifies a departure from this. Given that heirlooms come from one parties’ family and the intention is for them to continue to be passed down, the court’s view is that they are akin to inheritance and their value should be ring-fenced for the party who owns them. However, as with all inherited and pre-acquired assets, they can be invaded if it is necessary to use the capital value available to meet the parties’ needs for the future. The position is not therefore always straightforward and in some cases heirlooms may need to be sold to meet a needs claim.
Disputes regarding personal belongings and gifts when a relationship breaks down are exceptional. Parties should take comfort from the fact that personal belongings generally stay where they are on divorce, unless there are special circumstances, and that if gifts have been made, it is extremely difficult to undo them. A prudent spouse may wish to keep a contemporaneous list of any special items they bring into the marriage which they wish to retain or pass on to their children, but this would be evidence of intention only and not be strictly binding. If there is a dispute in respect of a specific item on divorce then the court does have the power to deal with it but parties should think very carefully about the costs implications of litigation, particularly where the item is not of substantial value in the context of the case as a whole.
If you have any questions about the topic of this blog, please contact a member of our team of family and divorce lawyers or click here to get started online and find out where you stand.
Liam Hurren is a trainee solicitor at Kingsley Napley and is currently in his first seat in the Family team, supporting the team with all aspects of financial and private law children work.
Sarah Dodds is an Associate in Kingsley Napley’s family and divorce team, where she specialises in complex divorce and financial work as well as private children cases.
Skip to content Home About Us Insights Services Contact Accessibility