Parting may be a sweet sorry for William Shakespeare but if neither of you are in Romeo and Juliet mode anymore, what happens to the gifts you received from each other?
What happens to the rings and the jewellery?
What happens to that lovely cash present Aunty Doris gave both or one of you last year? 
Dividing marital assets at the end of a relationship can be quite straightforward, but how do the courts look at gifts and divorce?

It is not unusual for parents to give their adult children significant gifts to help them get ahead in the property market, to go on a holiday or perhaps to assist with the raising of their children. This is all perfectly standard and legal, and many people are lucky enough to receive monetary gifts from their retired parents.

A problem arises when the adult child receiving a gift of money is in a relationship and this relationship later ends.

Does the other spouse have a right to the money that was given as a gift?

How can a person hold onto their gifts in a property settlement?

Will the gift be counted as part of the divisible pool of marital assets?

Property settlements do not follow any specific formula and many different points come into consideration.

Here are some of the most important elements to consider when looking at gifts in property settlements:

Assessing Contributions In A Property Settlement

A property settlement involves identifying a couple’s – whether de facto or married – assets, resources and liabilities and working out their total value. This typically involves looking at bank accounts, superannuation, property, mortgages, loans and sometimes other physical assets such as cars.

Both parties’ contributions to the marriage are evaluated. Contributions can be classified as direct and indirect, financial and non-financial.

Non-financial contributions include caring for children and maintaining the household. These are viewed as equally valuable as earning an income to provide for the relationship and family.

The court will divide the assets according to the contributions made by each party to the relationship.

However, adjustments may be necessary to account for a difference in the spouses’ current or future earning capacities.

One spouse, for example, may be the primary carer of the couple’s children and therefore have a limited capacity to work.

A person may also be less able to work due to illness, age or other reasons.

Any gift received by a party to the marriage will most likely to be counted as a financial contribution they made to the relationship, even the often given bloody wedding toaster.

If the gift was received before the start of the relationship, it will be categorised as an initial contribution.

As this increases the contributions the gift recipient made to the marriage or de facto relationship, their entitlements in the property settlement are likely to increase as well.

But be careful – there are other factors that affect the division of assets, and every case is different and is considered on its own.

Who Received The Gift?

Because a property settlement is about assessing contributions to the relationship, an important question is who was intended as the beneficiary of the gift.

If one spouse in the relationship receives a substantial monetary gift, it must be determined whether the gift was meant for their sole benefit or for the benefit of the other spouse as well.

Unless it is clear that the gift was meant for the equal benefit of both people in the relationship, the court will usually consider the gift as received by only one party. This will then affect the assessment of contributions as well as the adjustments made in the property settlement.

However, the question of who the gift belongs to holds less weight the longer the couple were married or in a relationship.

When dividing the property and assets following the breakdown of a shorter marriage or de facto relationship, such as one lasting for five years, it is more likely that any monetary gift received by either party will be kept out of the divisible asset pool, remaining the property of the gift recipient.

For longer relationships lasting at least ten or fifteen years, regarding gifts in property settlements, it is less relevant which side of the family the gift came from. Here, the court is more likely to treat both spouses as equally entitled to the money.

Determining who receives gifts in property settlements or whether a gift is divided equally depends on the assessment of contributions and each party’s earning capacity.

Protection of Gifts When Getting A Divorce

If you are the person giving a significant gift to your adult child, the possibility of their relationship ending in the future and their spouse claiming the money can be a legitimate cause for concern.

There are some strategies you can use to protect against this possibility, even if you do not think it very likely, and to keep the gift in your child’s possession in the event of a relationship breakdown.

One way to safeguard any gifts in property settlements is by recording your gift as a loan to make it technically repayable to yourself.

Loans are treated differently in property settlements from outright assets.

The court will not consider it as part of the divisible pool of marital assets as it is money that needs to be repaid.

If the court decides to have the loan repaid using the resources in the asset pool, following the finalisation of the divorce you are able to regift the money to your child.

The second way to ensure a gift remains belonging to its initial recipient is to draw up a binding financial agreement, or a prenuptial agreement.

Here, both spouses acknowledge the existence of the gift as belonging to one spouse, and acknowledge that the gift is not divisible with the other spouse in the event of relationship breakdown. A binding financial agreement is a legal document, witnessed and signed by an authorised person such as a Justice of the Peace.

The Engagement Ring

Parents are not the only people who may be concerned about the division of gifts in property settlements.

When a relationship breaks down, the spouses can have their mind on a very significant and symbolic gift made from one to the other, the engagement ring. No matter how ugly the ring, it is always held close at heart.

Australian couples now marry later than ever before, the engagement period lasts longer and over 75 per cent of couples move in together before getting married. Because the ring is generally a very expensive purchase, exactly who it belongs to – the gift recipient or the gift-giver – becomes a very important question.

Up until around the mid-20^th Century, family courts typically considered the ring as belonging to the person who gave it to the other spouse. The thinking was that the gift was given in contemplation of marriage, but the marriage never happened.

Today, the law varies on who owns the engagement ring, and the court’s decision often depends on factors including the value of the ring itself, who gave it to whom and whether the couple cohabited.

For many couples, the engagement ring can be a significant purchase.

Engagement rings are often expensive pieces of jewellery, but the value attributed to gifts in property settlements is based on their current second-hand purchase price rather than their value at the initial time of purchase.

Therefore, engagement rings may diminish in value when considered as part of the property settlement.

If the judge finds the engagement ring to not be of great value, and therefore not worth any kind of division or transfer of ownership, they will then usually allow the person who received the ring to keep it.

However, engagement rings with a significantly higher second-hand value, and therefore more likely to be causing conflict in the property settlement, will generally be counted as part of the asset pool to be divided between the spouses.

Considering the engagement ring as a gift given with the promise or expectation of marriage may affect a court’s decision on who retains ownership of it following a break-up.

The court’s decision may depend on who gave the ring and who left the relationship.

If the person who was given the ring refused to fulfil the conditions of the gift – marriage – then they may have to return the ring.

If the person who gave the ring refused to follow through with the promise of getting married, they may have no claim to the ring in the property settlement.

All this is based on the assumption that the couple in question cohabited as a de facto couple while they were engaged.

To be entitled to a de facto property settlement, which does not differ from the property settlement of a married couple when they divorce, a couple must be living together on a genuine domestic basis, not related to each other and not legally married.

The majority of Australian couples live together before marrying, making the ending of an engagement and the ending of a marriage a similar matter before the family court and raising the same issues regarding gifts in property settlements.

Don’t forget to check out all our great family law info HERE.
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[With acknowledgement and thanks to our “two sides” to the debate, Neil Fizzell and Jane Gordon]

There are two sides to every coin so let’s have a look at the arguments for whether there is a good moment in a child’s life when the least amount of damage is done to children by divorce or separation.
There is a “good” age for children’s parents to split if they must says Neil Fizzell – but Jane Gordon begs to differ.

A good time for divorce?
New research shows there is a “good” age for children’s parents to split, writes Neil Fizzell.

The phrase “staying together for the children” has always struck me as nonsense. Ever since, as a nine-year-old standing by a blue sofa, I begged my parents to get divorced – knowing that I was yet again going to be ignored – I have seen the tissue of lies that sticks to those words. They are as stupid as the phrase “it’s what they would have wanted” at a funeral.

What often holds an ill-matched set of parents together isn’t familial duty but financial interdependence, fear of being alone, illness, religion, conditioning, complacency or cowardice.

And the longer you, as a child, have to live in a house tarnished by disharmony, violence, discord or depression, the worse it will be for you; not just in that moment, but for your ongoing mental and relationship health.

So it came as no surprise to me to read new research, from University College London, which says that parental divorce is less harmful if it happens in early childhood.

According to the analysis of 6000 children born in the UK, those who were aged seven to 14 when their parents split are 16 per cent more likely to suffer emotional and behavioural problems than those whose parents stay together

Big news, you might say. Children from discordant homes fare worse than those whose parents are in a loving relationship.

But what is really interesting is that children who were between three and seven when their parents separated showed no differences to those whose parents were still together.

In short, if you’re going to break up, better to do it sooner, rather than wait until your children are older and more likely to form harmful patterns of behaviour themselves.

My parents – a couple so spectacularly ill-suited that even their best man, in his wedding speech, made a joke about their throwing crockery at each other – spent my childhood on and off. They finally separated for good three weeks before my A-levels

The timing was spectacularly bad and I told them that if they ever dared get back together, I would never speak to either of them again: a promise I was fully prepared to keep.

The effect of all this instability and absence and uncertainty was to give me a hardline and total disbelief in long-term lasting love for all of my teens and most of my 20s, until finally (with much help from partners and professionals) I started to see that emotional interdependence can actually be healthy, as well as dangerous.

Of course, having your parents separate is painful, sad, destabilising, scary and a logistical nightmare.

Anyone in the “broken home” gang will recall the nasty, slinking presence of a parent as they go around the house taking items from shelves and out of cupboards before leaving the family home

We will all remember the sobbing adults on the stairs; grim weekends of enforced “quality time” with an estranged parent; the terrible, silent dinners.

But all that is, I would argue, far better than spending your formative years under house arrest with two people who loathe each other.

Better to have a disorientating break while you’re young, than to suffer years in the company of two people enacting a corrosive war of insults, screaming, lying, gaslighting, sulking, infidelity or violence, centimetres from where you’re trying to do your homework.

The idea that you are somehow protecting your children by exposing them to the most poisonous elements of human behaviour is laughable

It is also a heinous injustice for children to be made aware, either explicitly or unconsciously, that their parents are staying in a state of loveless misery “for their sake”.

As though the burden of responsibility is yours; that if you weren’t around, these two people would have gone their merry ways years ago.

Luckily, my parents were so unmistakably incompatible that I never fell for this lie.

I knew, for as long as I can remember, that they were caught in a web of fear, laziness and lust that had nothing to do with me.

So when, during one of their separations, I was reassured by kindly adults – a teacher, a friend’s parent – that this wasn’t my fault, my answer was always: “I know. It’s theirs.”

The UCL study, published in the journal Social Science and Medicine, also reported that, on average, mothers experienced more mental health problems if they separated when children were older.

This is, in part, because the financial impact of divorce is more severe for a woman the later it happens in a marriage – that is, once your income, investments and belongings are as intertwined as a hedge full of bindweed.

What this says to me is that if we really wanted what was best for our children then we would all, men and women, strive for an end to the gender pay gap, regulation of private landlords, free childcare – all the things that keep many couples stuck in loveless marriages and many children, like me, living in homes damaged by them.

No good time for divorce?
No, there is no “good time”. Jane Gordon says that, if she had her chance again, she’d have worked at it.

The seven adults, one child and a dog gathered around a table in a London pub last Sunday probably looked like the perfect multi-generational family.

We were celebrating the birthday of my youngest daughter with a brunch that was, for me, as bitter as it was sweet.

Because, despite the illusion of unity we gave off to the people seated at neighbouring tables, we are in fact a broken family. Divided some 15 years ago by divorce.

The fact that we can all get together on special occasions and have fun is proof, I suppose, that we have achieved what some might call a “civilised” or “amicable” separation.

But the truth is that divorce is rarely civilised and almost never amicable.

The breaking-up of a family is always going to be painful and the idea that there is ever a “good” time to divorce is, I think, misleading.

It isn’t, of course, either possible or desirable to turn the clock back to change the events that caused my ex-husband and I to part.

But I do believe that if I had known then what I know now, I might have worked harder at holding our marriage together.

Our breakdown was not a sudden thing but a slow moving apart.

In the last few years, I was more absorbed in my children – then aged 21, 19 and nine – and my career, than I was in my relationship with my husband. While he, feeling increasingly isolated, switched off.

At the time, our problems seemed insurmountable – a future apart seemed preferable to a future together.

But had someone told me the truth about divorce – explained to me exactly how, in the years ahead, it would impact on our lives and the lives of our children – perhaps we might still be together.

Instead, we both bought into the idea that by divorcing we could achieve a “clean break” and a “fresh start”. Neither of which, in the event, worked out.

While we did move on to new relationships, they, too, broke down and today we are both single and, yes, sometimes lonely in a way that confirms my belief that divorce is never a good thing.

And it doesn’t mean you are going to be any happier than you would have been staying together.

I do worry that telling parents it’s better to divorce when the children are under seven will discourage them from working through the humps of unhappiness that any marriage goes through.

Divorce, I now believe, can only ever be seen as a favourable option to marriage in the most desperate of circumstances.

No marriage is ever perfect, but most are probably good enough.

But, at the time of my break-up, I didn’t understand this great truth.

It wasn’t until my parents died, a few years later, that I realised the true impact my divorce would have.

Their deaths – within six months of each other, after 60 years of strong, but far from perfect, marriage – made me realise what, in deciding to separate, I had denied my own three children.

They might not have lost their parents when we divorced, but they lost their family home and the continuity of life that makes the journey from child to adult so much more comforting and secure.

The fact that I have not given my own children the security and unity that I took for granted, will always be a source of shame and regret.

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In the US and Australia, the divorce rate has been steadily declining since the 1980s.
That’s quite a surprise to me in this ever increasing self absorbed world we’re living in.

However, the latest research reported in The New York Times suggests about one-third of current marriages will end in divorce — not the 50 per cent statistic that gets thrown around time and time again. Unfortunately, that means there’s still a decent chance you and your partner will split up, even after pledging lifelong devotion to each other. That idea leaves room for a lot of questions:

What makes a divorce more likely? What will happen to our kids if we do split up? What will happen to my health? To help address some of these queries, let’s take a look at the relevant research on the predictors and consequences of marriage failure.

Before we start have you ever wondered about whether the stress and expense of putting on a lavish wedding has on the long term outcome of a marriage? According to the researchers: “As compared with spending between $6000 and $15,000 on the wedding, spending less than $1500 is associated with half the hazard of divorce in the sample of men, and spending $25,000 or more is associated with 1.6 times the hazard of divorce in the sample of women.” 
Remember that full blown wedding of Salim Mehajer?
All the bells and whistles didn’t stop that marriage ending acrimoniously.

Now before we begin keep in mind that all these studies mentioned below offer general takeaways about modern relationships — no one can predict with 100 per cent accuracy what will happen to yours.

1. You are less likely to divorce if you marry in your late 20s

Research led by Nicholas Wolfinger, a professor at the University of Utah, found that contrary to a long-held belief, waiting longer to wed doesn’t necessarily predict a stronger marriage.

Instead, the best time to marry seems to be between the early 20s and early 30s. If you wait until you’re older than 32, your chances of divorce start to creep up (though they’re still not as high as if you get married in your teens).

As Wolfinger writes on the Institute for Family Studies blog, “For almost everyone, the late twenties seems to be the best time to tie the knot.”

2. You are most likely to divorce in after a major holiday period

2016 research presented at the American Sociological Association found that post major holidays  bring spikes in divorce applications.

In the paper, they suggest that holidays represent something like “optimism cycles” — we see them as a chance to start anew in our relationships, only to find that the same problems exist once they’re over. The researchers also suspect that oftentimes our holiday experiences can be stressful and disappointing, laying bare the real issues in our marriage. As soon as they’re over, we’re ready to call it quits.

3. Husbands who work less may be more likely to divorce

Well who would of thought that less work would result is marriage unhappiness.

However, a recent Harvard study couples suggests that it’s not a couple’s finances that affect their chances of divorce, but rather the division of labour.

When the researcher looked at heterosexual marriages that began after 1975, she learnt that couples in which the husband didn’t have a full-time job had a 3.3 per cent chance of divorcing the following year, compared with 2.5 per cent among couples in which the husband did have a full-time job.

Wives’ employment status, however, didn’t much affect the couple’s chances of divorce.

The researcher concludes that the male breadwinner stereotype is still very much alive, and important for marital stability.

4. The myth that women who have had more sexual partners are more likely to divorce

Wolfinger conducted another analysis that found, among heterosexual couples who married in the 2000s, women who had between three and nine sexual partners were in fact less likely to divorce than women who’d had two partners (their husband and one other person).

Women who had at least 10 partners were most likely to divorce.

Meanwhile, among heterosexual couples who married in the 1980s and 1990s, women who had two or three sexual partners were more likely to get divorced than were virgins or women who had at least 10 sexual partners.

In a statement, Wolfinger distilled the lessons from this research: “If you’re going to have comparisons to your [future] husband, it’s best to have more than one.”

5. Couples closer in age are less likely to divorce

One study found that the odds of divorce among heterosexual couples increase with the age gap between the spouses.

As Megan Garber reported at The Atlantic: “A one-year discrepancy in a couple’s ages, the study found, makes them 3 per cent more likely to divorce (when compared to their same-aged counterparts); a 5-year difference, however, makes them 18 per cent more likely to split up. And a 10-year difference makes them 39 per cent more likely.”

6. Lavish weddings may predict less successful marriages

Well as previously mentioned, it ain’t the size of your cake that makes a marriage work.
In fact, spending a lot on your wedding doesn’t necessarily bode well for the marriage itself.

According to the researchers: “As compared with spending between $6500 and $15,000 on the wedding, spending less than $1500 is associated with half the hazard of divorce in the sample of men, and spending $25,000
or more is associated with 1.6 times the hazard of divorce in the sample of women.”

At the same time, the study found that having a lot of guests at your wedding predicts lower odds of divorce. My Thai friends will certainly be relieved to know that, where less than 100 guests is seen as odd. Couples with 200 or more invitees are 92 per cent less likely to divorce than couples who don’t invite anyone, The Atlantic reported.
So a simple wedding with lots of friends seems to be the perfect combo!
A pity dear Salim couldn’t work that out.

7. Divorce may contribute to heart problems in women

Recent research suggests that women who get divorced are more likely to suffer a heart attack than women who stay married.

As Time‘s Alice Park reported: “Women who divorced at least once were 24 per cent more likely to experience a heart attack compared to women who remained married, and those divorcing two or more times saw their risk jump to 77 per cent.”

For men, however, the chances of suffering a heart attack only went up if they divorced two or more times.

8. Divorce itself might not have a negative impact on kids

Instead, as Rebecca Harrington reported at Tech Insider, it seems to be conflict between parents that takes a toll on their children.

In fact, in one recent study, children whose parents fought a lot and then divorced were less likely to get divorced as adults than children whose parents fought a lot and didn’t get divorced. The researchers say that’s possibly because the divorce put a kind of end to the ongoing family conflict.

9. Couples who display contempt are more likely to divorce
Well I guess this is certainly stating the obvious but there are studies to prove it.

Relationship expert John Gottman’s research, which suggests that contempt — a mix of anger and disgust that involves seeing your partner as beneath you — is a key predictor of divorce.

It’s not simply getting into a fight; it’s how you respond to your partner afterwards: Do you try to see things from their perspective or just assume they’re an idiot?

If it’s the latter, try replacing the behaviour with a more positive, patient reaction. It could save your marriage.

Don’t forget to check out all our free legal resources on family law HERE.

[With thanks to Business Insider for some content contribution]