Breaking up with someone you loved enough to want to marry may seem like such a personal thing that other people should keep their noses out of, but not with the law. The law likes butting its nose into people’s personal business. It even regulates what happens when you break off an engagement. This is because the law is there to regulate social relations. Without such regulation, it would be hard to know how to resolve conflict which is a function of society and is bound to happen where people interact with each other.
The history of engagement gifts
The exchange of gifts between two individuals who are in love and are about to marry has always been a significant part of some traditional African cultures. These gifts (known as nduma in Shona) were exchanged as symbols of love before an aunt. Back then, there were no suspicions that the giver of the gift was a ‘pimp’ trying to lure the receiver of the gift with money or that the one who received the gift was a ‘gold-digger’ interested in the giver only because of what they could give, as things have become nowadays. The gifts, then, were usually beads, jewellery and with the arrival of the Portuguese and growth in trade, cloth was introduced and italso became part of the gifts exchanged.
The gifts that we see exchanged today between lovers are of much higher value. Some of these gifts are given in contemplation, expectation or anticipation of marriage (e.g. engagement ring) or as affectionate gifts of some value between lovers e.g. jewellery (bracelets, earrings, rings, necklaces, anklets) or as gifts of unusually high value (house, car, a lot of money).
The law states that if two people who were in love exchanged gifts, and these gifts were given with the expectation that the two would marry, if the engagement is broken such gifts MUST BE returned! They can only be kept if the one who gave them decides that he or she does not want them back.
The gifts can be returned in the following circumstances (among others):
Where there is consent between the parties
|Tawananyasha and Nkululeko are engaged. They decide to end the relationship because both of them can see that things are not working. Tawananyasha gives Nkululeko back the 15 carat diamond ring that he had given her for their engagement.|
Where marriage is impossible because of reasons beyond both individuals’ control
|Fadzai is engaged to Tatenda. 6 months before their wedding they decide to do the lobola ceremony. Tatenda is accompanied by his uncle Njabuliso. As soon as Fadzai’s father sees the people coming into his house, he starts shouting for “those dogs to leave” his house. The ceremony is called off. Fadzai is confused and hurt. So is Tatenda. It turns out Uncle Njabuliso is the guy who dated Fadzai’s mother before she met her father. Fadzai’s father still holds the grudge and will not accept his daughter marrying into Uncle Njabuliso’s family. The wedding is called off and Tatenda has to return Fadzai’s car which she had bought for him the weekend before the lobola ceremony, anticipating he was about to become her husband.|
When the engagement ends because one of the two people involved “misbehaved,” the person who is wronged is entitled to recover all gifts that were given ahead of the marriage and in anticipation of marriage. The person responsible for the wrong-doing has no right to claim any of his/her gifts.
|Nozipho pays her boyfriend, Themba, a surprise visit at his condo and finds him in bed with his neighbour Ntokozo. Nozipho is heartbroken and demands that Themba should immediately return her BMW and move out of her house which gifts she had given him looking forward to their marriage.|
Gifts of high value given out of affection/ donated and not in anticipation of marriage are not returnable. This is because ownership passes at the time of donation. The example below makes this point because the money was not a loan, it was not given because the two were about to get married but it was a mere donation:
|3 Months before they broke up, Themba gave Nozipho $5 000 to boost her investment into a haulage truck. He really felt sorry for her as the previous week she had lost out on a deal to transport cement from Beira to Harare because her fleet had 9 instead of the required 10 trucks by the contractors. Themba made it clear the money was not on loan.|
As for the last one this is the reason why married people who cheat are called in Shona –vana mudyiwa- loosely translated to mean “those from whom all can eat” a term referring to individuals from whom great material wealth can be siphoned/taken. If a married person gives her/his lover a gift anticipating marrying the lover, when the relationship ends, they cannot demand back whatever gifts they gave to the lover.
|Muvengwa, the married man cannot claim back the Range Rover that he bought for his mistress when they break up. He has no right under the law to do that especially if the car is in her possession and she has legal title to it (Registration Book). In such circumstances, Muvengwa loses out and his best bet is to forcefully repossess it. In doing so, he risks breaking the law if he breaks into any property, damages any property or fights with her and hurts her. He might actually end up in prison.|
The reason why married men or women can’t claim back gifts from lovers is because the situation itself is considered in law to be contrary to public policy (in pari delicto in Latin). No court will accept a complaint of that nature or entertain the issue. Whoever possesses the gift is in a stronger position and the one who gave it cannot claim it if the marriage does not take place.
So if you are small-house, both male and female; you would do well to break up with your lover, on the day that you have the car that s/he gave to you and after moving all the furniture s/he bought for you, especially if you are living in her/his house from which s/he can easily evict you.
In all these situations, there would be less dispute and lawyers would have less to deal with if the option of returning the gift before the lover even asks for it was what many people chose. In some cases, it would mean starting over but it would avoid further conflict.