December 9, 2004

Devries Column

Getting an engagement ring back can be tricky

This week’s question:
In the spirit of the season, I am thinking about giving an engagement ring to my fiancée for Christmas. She is a wonderful woman and we are really in love, but I have just one question. In case I change my mind and decide not to go through with the wedding, can I get the ring back (I know this may sound kind of coldhearted, but after all, the ring will cost me quite a bit of money)?

Will W.
Almaden Valley

Dear Will:
Your question is a very interesting one, Will, and quite timely in view of the season.

First of all, one must look to see if the ring will be a valid gift when you give it to your fiancée. Three things are necessary for a valid gift:

- There must be an intent, on the part of a donor (i.e., the giver of the gift) having capacity to contract, to make an unconditional gift;

- There must be an actual or symbolical delivery, such as to relinquish all control by the donor; and

- The donee (the receiver of the gift) must signify his or her acceptance.

“Capacity” referred to above is generally meant to include being a legal adult (at least 18 years of age), and of sound mind.

Let us assume that you are over 18, are of sound mind, give the ring to your sweetheart, and thereafter just change your mind about going through with the marriage.

Then the question becomes whether you can get the engagement ring back from your fiancée if you change your mind about the marriage. Although the facts may vary a lot in any given situation, thus making hard and fast rules difficult, the answer may be found in California Civil Code §1590, adopted in 1939.

Basically, whether you can get the ring back after you have given it as a gift depends on whether you or your fiancée is calling it quits or whether it is by mutual consent. §1590 provides as follows:

California Civil Code §1590. Parties to Proposed Marriage May Recover Gifts. 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.

Therefore, it would seem to be the rule that if you and she decide to call it quits by mutual consent, you can get the ring (or its value) back. And the same is true if she backs out of the wedding plans—you can get the ring (or its value) back. But once you give her the ring, you cannot get it back if she still wants to go through with the wedding.

Civil Code §1590 quoted above does not refer expressly to the situation where the donor refuses to marry, but it seems obvious that he cannot set aside his gift. According to a case entitled Simonian v. Donoian (1950) 96 C.A.2d 259, 262, 215 P.2d 119, “The clear meaning of the quoted statute is that the donee of an engagement ring is entitled to retain possession thereof when the marriage contract is breached by the donor without any fault on the donee’s part.”

As I always caution, consultation with your own attorney concerning this or any other legal topic is essential.

So, good luck, Will. I hope everything works out just fine. And best wishes for the holiday season.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408)268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, DeVries will not disclose your identity or any details about your situation. Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.