Just recently a landmark UK court judgement looked to bring English law into line with the Sharia law's position on 'bride price' payments. 'Bride price' or mahr is one of the important aspects of an Islamic marriage contract. It is a gift or promise of a gift to the wife by the husband. Under Sharia law the wife has the right to ask for her full mahr at any time during her marriage or upon its dissolution.
Is a gift from my spouse matrimonial property?
When it comes to the division of matrimonial property in Scotland, the law is quite clear that gifts between spouses do count as matrimonial property. For example, if you have received an expensive piece of jewellery from your husband then its value needs to be added in along with the other assets accrued during the marriage.
When it comes to gifts by third parties, this is not the case. Gifts from third parties are exempt from the matrimonial pot. If that expensive piece of jewellery was from a friend or family member, your spouse would have no claim on that gift.
Who was the gift actually for?
One area that can muddy the waters is in trying to determine who the gift was given to. Was the gift given to you or was it a joint gift to both husband and wife? In determining this, it is necessary to look at all of the circumstances surrounding the making of the gift. It may be sensible in the circumstances to have something in writing when the gift was made such as a cheque in the name of the person it was made to or a note accompanying the gift that can be later used to prove who the gift was intended for.
Change of the nature of the Gift
Another area that may complicate matters is if one party receives a gift and then goes on to use it for the purposes of the family. The most common example is where one party receives money from his or her parents and then puts that money towards paying down the mortgage on a house. Although the money given is clearly not "matrimonial", it becomes "matrimonial". It is then up to the party who received the gift to Present an argument that they should be credited with the gifted money.
What about the engagement ring?
This is a common question that is asked by couples when parties divorce/the marriage has come to an end. Things are different here as the engagement ring is given to the other party before marriage. Unless there was an agreement to return the engagement ring if the wedding was cancelled, then the party that received the ring is under no obligation to return it. If, however, there was a condition that the ring would be returned if the engagement was broken off, the recipient may have to give the ring back. An example of this is evidence of a family heirloom that would be returned.
Gifts can be a tricky area of the law when it comes to separation and it’s a case of looking closely at the various facts and circumstances to work out how things should be addressed.