Australian law differentiates between a gift and a loan primarily based on the parties’ intention during the transaction and the presence or absence of a contractual obligation to repay.
For a transaction to be considered a loan, there must be a legal agreement, either verbal or written, that the money or property transferred will be repaid, potentially with interest, within a certain timeframe.
Conversely, a gift is understood as a voluntary transfer of money or assets from one person to another without the expectation or requirement of repayment.
Several factors are crucial in establishing whether a transaction is a gift or a loan under Australian law:
- Existence of a Formal Agreement: A documented agreement indicating the repayment terms, interest, and other conditions is strong evidence of a loan. The absence of such documentation can, in some contexts, imply a gift; however, this is not a determining factor on its own.
- The Behaviour of the Parties: Regular repayments or actions demonstrating an understanding that the money or property needs to be returned can reinforce that a transaction is a loan. In contrast, the lack of repayment efforts may suggest a gift, though not conclusively.
- Verbal Agreements or Understandings: While these are often harder to prove, verbal indications at the time of the transfer, witnessed by others or followed by consistent behaviour, can be significant. Courts will consider this evidence in understanding whether a transaction was meant as a gift or a loan.
- Nature of the Relationship: The relationship between the parties (e.g., family, romantic, or business) can influence the context within which the transaction is understood. For instance, money given during a family event may be considered a gift, while a business transaction is more likely to be viewed as a loan.
- Circumstances of the Transaction: The situation during which the transfer occurred can also be indicative. Special occasions, like birthdays or weddings, are more conducive to gifts, whereas a personal financial crisis might imply a loan.
In cases of dispute, Australian courts will assess these factors in light of the evidence presented to ascertain the true nature of the transaction. It’s also important to note that the burden of proof may depend on the specific claims of the parties involved.
Given these complexities, consulting with a knowledgeable family lawyer for advice or representation is often advisable.
What Proof Is Needed To Establish Something As A Gift In Australia?
A Deed of Gift is Australia’s most common proof of a gift. A Deed of Gift is a legal document that states that the donor is giving the gift to the recipient voluntarily and without any expectation of repayment. It should be signed by both the donor and the recipient, and it is important to have two witnesses sign the document as well.
Other evidence that can be used to establish a gift includes:
- Bank statements: If the donor transfers money to the recipient’s bank account, the bank statements can be used as evidence of the gift.
- Receipts: If the donor purchased a gift for the recipient, the receipt can be used as evidence of the gift.
- Other documentation: Any other documentation that shows that the donor intended to give the gift to the recipient can be used as evidence, such as letters, emails, or text messages.
What Legal Actions Can I Take If Someone Claims The Gift Was A Loan?
If someone claims that a gift you received was actually a loan, you have a few legal options available to you.
Defend your position in court
If the person claiming the gift was a loan takes you to court, you can defend your position. You can present evidence that the gift was intended to be a gift, such as Deeds of Gift, bank statements, and receipts.
You can also testify about your relationship with the person who gave you the gift and why you believe they intended it to be a gift.
Negotiate a settlement
If you do not want to go to court, you may be able to negotiate a settlement with the person who claims the gift was a loan. This may involve agreeing to repay some or all of the money or property that you received.
File a counterclaim
If you believe that the person who claims the gift was a loan is acting in bad faith, you may be able to file a counterclaim against them. This may involve alleging they are trying to defraud you or breach a contract.
Gosper v Gosper  FLC 91-108
In Gosper v Gosper, a dispute arose between family members regarding the financial contributions towards a property.
The central issue was whether the contributions made by the parents to their child and their child’s spouse were gifts or loans.
This distinction would affect the property settlement after the child and the spouse decided to separate.
The case revolved around several critical points that the court scrutinised to determine the nature of the financial contributions:
- The lack of a formal loan agreement: No formal documents suggested that the money provided should be repaid at any specific time or any written agreement outlining the terms of a loan, such as interest to be charged and security over the property.
- Family relationship and typical behavior: The court considered the nature of family relationships, where financial transactions often don’t involve formal agreements and are based on trust and the mutual understanding of assistance.
- Conduct of the parties: The behaviour of the family members before, during, and after the transactions took place was examined to see if there was any implied or explicit understanding of repayment.
- Communication between parties: Any discussions or correspondence referring to the money were analysed to understand the context in which the transactions were made.
In its decision, the court leaned on the principle that the transaction’s character is determined by the parties’ intention at the time of the transaction, with a particular emphasis on the evidence (or lack thereof) of an agreement for repayment.
In “Gosper v Gosper,” the court found that the money provided was a gift, not a loan. The court made this decision based on the overall circumstances, including the lack of formal loan documentation and the parties’ conduct, which did not indicate an expectation of repayment.
This case is notable for setting a precedent in family law matters, emphasising that the Family Court will look beyond just written agreements to determine the nature of financial transactions.
It highlighted that in familial settings, money is often given more informally, and the intention behind the transaction will be thoroughly examined through various forms of evidence.
“Gosper v Gosper” continues to be cited in family law disputes, underscoring the importance of clear communication and the value of having explicit agreements when exchanging significant sums of money or assets, even among families. It’s a reminder that a court will consider all aspects and evidence of a transaction within its context.
Need Help on How To Prove It Was A Gift Not A Loan?
Don’t let misunderstandings strain your relationships and peace of mind. At Justice Family Lawyers, we specialise in resolving disputes regarding financial transactions.
Whether you’re facing a family disagreement or a formal legal challenge, our experienced team is here to support you. We’ll help gather the necessary evidence, provide expert guidance, and passionately advocate for you.
Contact Justice Family Lawyers today and take the first step towards securing your financial future and emotional well-being.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.