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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Three Questions. My ex-fiancé and I split up that leaded

Resolved Question:

Three Questions. My ex-fiancé and I split up that leaded up me calling of our wedding. Regarding the engagement ring and my deceased mom’s necklace  she has where do I stand? There was no formal agreement should the wedding no go ahead.


 


We jointly own a property together 50/50 – her parents has put down the deposit and also paid the legal fees related with the mortgage in both our names. The deposit put down by her parents is this like the engagement ring also seen as an “obsolete gift”? There was also no arrangement in place should the wedding not take place. What best advice regarding?


 


Also cost or monies that supplies are willing to refund us for our wedding being cancelled - both of us signed contract with the supplier where supplier asked confirmation letters of cancellation and agreement on bank account or accounts to pay monies back - my ex-fiance was insisting all monies must get paid back into our joint bank account (that she has frozen now) or the supplier should keep all the money. My letter to the supplier was to pay 50% into my personal account and the rest over to the joint account my ex-fiance and I had. The supplier did say no monies can't be paid over unless there is an agreement. If the supplier does pay 50% over into my bank account can my ex-fiance take the supplier to court? What is my and the suppliers position in this matter?

Submitted: 3 years ago.
Category: Family Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask, regarding your mothers necklace, did you lend this or gift this to your fiance please?

Joshua :

Regarding your supplier from whom you want a refund, did you jointly instruct this supplier or did one of you instruct them individually?

Customer:

Good Morning Joshua,

Customer:

My deceased mom's necklace was something I inherited from her. There was no specification as to was it a gift me lending it to her - we did had a few discussion that if we ever break up I will have to give it one day to my daughter should I have one. Does that help?

Customer:

don't know if my ex-fiance will ever admit to the conversation.

Joshua :

Thanks. Regarding the necklace did you consider that you were giving her the necklace when you handed it over or did you consider it just to be a loan for her to wear? Presumably based on what you say above this was the case?

Customer:

For me it was a lone as it is pretty much one of the few heirloom I have of her.

Joshua :

Thanks. Regarding the engagement ring was any condition imposed by you when you gave it to her - e.g. this is a gift on the condition that we marry? In practice such conditions are rare/

Customer:

There was on specific conditions written down or discussed except that the intention the ring imposed the commitment in getting married.

Joshua :

Thanks. In respect of the engagement ring the position is dealt with by s3(2)Law Reform (Miscellaneous Provisions) Act 1970 which provides that "The gift of an engagement ring shall be presumed to be an absolute gift; this presumption may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason."

Joshua :

Accordingly the burden of proof is upon you to show that the gift of the ring was not absolute but you made it conditional on marriage or some other condition. In practice this may be difficult in the absence of anything written down which would of course be unusual.

Joshua :

The position is better regarding the necklace... there is no presumption of a gift in respect of this item and unless your ex partner can show that it was a gift then this must be returned to you. For the necklace, the burden of proof is upon her to show that it was a gift.

Customer:

Regarding the supplier - we jointly signed the contract for delivery and went to the suppliers premises to discuss the menu (the supplier was our to be caterer) Once the wedding was called off I called the supplier informing of the cancellation - were the supplier ask for letters from us both to confirm cancellation and also what bank account or accounts to reply the monies in. Apparently the supplier couldn’t pay over any money if no agreement could be achieved – I stated in my letter to the supplier to pay 50% into my personal account where by my ex-fiancé stated that if the money don’t get paid back into our joint account by a certain date the supplier should keep the money.

Joshua :

The starting point for the supplier is that they are correct that they would want to have agreement from you both as to where to return monies. The reason for this is they do not want to expose themselves to a situation whereby they return monies and then find themselves open to a claim by one of you that you did not agree to what they did. This seems like a foolish matter for on which not to agree in the first instance at least as there is an obvious joint advantage for both of yo in securing a refund. If you cannot agree between you then the matter would have to proceed to court to resolve, but presumably the solution is for you to agree to monies being paid to your joint account and for you to notify your bank that any instructions on the account from now on must be joint rather than joint and several. This means that neither of you can individually take money out of the account without agreement from the other.

Joshua :

If necessary you can issue proceedings for recovery of your half the refund from the supplier in the county court but one would hope this would not be necessary. You can do so using www.moneyclaim.gov.uk.

Customer:

think the law regarding Act 1970 is out dated as to my view it the specific was written in a time when women's income was way lower then men's and the "gift" could be sold to help the women financially. Where now women are why more independent in earning their own money. Where it should come down on who paid and bought the ring.

Joshua :

You can also do the same thing if necessary in respect of the recovery of your necklace.

Customer:

The necklace is bit hard to recover as per one messages she through the necklace into the Themes river.

Joshua :

Your comments regarding the above Act may be very fair. Unfortunately the above provision is still on the statute books, and therefore whether we as men like it or not it remains the law until such time it may be changed. Regarding the necklace if she has destroyed or deliberately lost the necklace she will be liable to you for the replacement cost. Clearly the sentimental value cannot be replaced but the courts can award market replacement value.

Customer:

I went into the bank and the joint account was "closed" down or more correctly the teller couldn't find the account on the system.

Joshua :

Regarding your bank account clearly you will need to obtain a full explanation from the bank as to the account status. The bank cannot simply "lose" an account. They must explain to you what has happened as a joint account holder. If necessary you can make a complaint if they are not giving you information.

Joshua :

May we turn to the property you jointly own?

Customer:

Thank for answer the questions and yes lets turn the the property.

Joshua :

Thanks. Was the money for the deposit paid to their daughter who in turn paid it as part of the property?

Customer:

What is my position regarding the property we jointly own? Like the ring there was no specific agreement but also like the ring and under 3(2)Law Reform (Miscellaneous Provisions) Act 1970 is this also presumed as an obsolete gift?

Customer:

No the money was paid directly from her fathers account into the holding account of the solicitors.

Joshua :

Thanks. Did the solicitor obtain confirmation as to whether the money was a parental gift? Certainly the solicitor is required to identify the source and purpose of the money to satisfy money laundering regulations and in order to comply with his obligations to the lender.

Customer:

I honestly don't know I can ask the solicitor.

Customer:

In your experience what is the general answer?

Joshua :

You can as you say ask your solicitor to confirm the point. If he did not confirm the above he is in breach of the Proceeds of Crime Act and his obligations to the lender both of which are serious breaches so certainly I would expect him to have done so. The requirements of the lender would have been that the parents confirm the money was an absolute parental gift - lenders will typically not lend otherwise. Accordingly barring a mistake by the solicitor which would be unusual, I would expect the money to have been confirmed as a gift.

Joshua :

If this is the case then the money would be treated as a gift to daughter and if you and she did not enter into any form of declaration of trust or other agreement when you purchased the property then there is a presumption that you own the property 50/50 and similarly are liable for the mortgage in equal shares too.

Customer:

As it was a gift what is my position regarding the matter?

Customer:

Where are liable 50/50 for the mortgage in equal shares.

Joshua :

It is possible for either of you to shift away from a presumption of 50/50 if you can show that there was no intention for each of you to own the same 50/50 but this is not straightforward to do. The burden of proof is upon the person wishing to shift away from a presumption of 50/50.

Joshua :

Accordingly on the basis that you have no agreement to the contrary your starting point is that you can assert a 50% share of the property unless she can produce evidence of agreement to the contrary.

Joshua :

Is there anything above I can clarify for you?

Customer:

In short summary.

Customer:

The ring - I have to proof it was gift.

Customer:

The necklace - she has to proof it was a gift.

Customer:

The answer to the property even thought her parents put down the deposit money I am in the same position as her regarding the ring - 50% of the deposit money effectively belongs to me except if she can prove it otherwise.

Joshua :

The ring - you have to prove it was not an absolute gift but rather a conditional gift or loan if you are to obtain it back

Joshua :

The necklace - quite so. She must return or compensate you for it unless she can show it was a gift.

Joshua :

The property - as you say there is a presumption of 50/50 ownership unless she can show evidence to the contrary.

Joshua :

Is there anything above I can help you with any further?

Customer:

No that is all thank you Joshua - you have been a great help in clarifying what my position is.

Joshua :

A pleasure. I hope you manage to resolve at least some of these issues with the minimum of fuss. If I can assist any further as the situation develops please do no hesitate to let me know.

Customer:

I do hope to resolve everything with the least amount of fuss. If there is anything more I will surely not hesitate to contract you.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer:

How do I contract you?

Joshua :

You can contact me in the future either by asking for me in the first line of any question or by bookmarking my profile:

Joshua :

http://www.justanswer.com/law/expert-joshua/

Customer:

Brilliant - hope you have a great day

Joshua :

And you

Joshua :

Best wishes

Joshua and other Family Law Specialists are ready to help you