Generally speaking, once a gift has been given and accepted unconditionally, it cannot be legally taken back in Australia.
This is because a gift is considered to be a completed contract. For a contract to be valid, there must be an offer, acceptance, and consideration. In the case of a gift, the offer is the act of giving the gift, the acceptance is the act of receiving the gift, and the consideration is the gift itself.
However, there are a few exceptions to this rule. For example, a gift can be taken back if:
- The gift was given under duress or coercion.
- The gift was given based on a mistake of fact.
- The gift was given in exchange for a promise that was not kept.
- The gift was given to a minor who has since disclaimed it.
- The gift was given to a spouse or partner during a marriage or de facto relationship, and the relationship has since broken down.
What Are Conditional Gifts, And Are They Enforceable In Australia?
A conditional gift is a gift that is subject to certain conditions. These conditions can be anything from graduating from university to marrying a person of a particular religion.
Conditional gifts can be both enforceable and unenforceable in Australia, depending on the nature of the condition.
A condition precedent is a condition that must be met before the beneficiary can receive the gift. For example, a parent might leave their child a house in the state where they graduate from university.
If the child does not graduate from university, they will not receive the house.
Condition precedents are generally enforceable in Australia unless uncertain, impossible, or illegal. For example, a condition that requires a beneficiary to commit a crime would be unenforceable.
A condition subsequent is a condition that must be met after the gift has taken effect. For example, a parent might leave their child a house on the condition that they do not sell it for a year. If the child sells the house, then they will lose the gift.
Condition subsequent is also generally enforceable in Australia unless uncertain, impossible, or illegal.
However, there are a few exceptions to this rule. For example, a condition subsequent that restricts a beneficiary’s freedom, such as a condition that requires a beneficiary to remain unmarried, is generally unenforceable.
Examples of enforceable conditional gifts in Australia
- A gift of money to a child on the condition that they graduate from university.
- A gift of a house to a child on the condition that they live in it for at least five years.
- A gift of shares to a child on the condition that they work for the family business for at least 10 years.
Examples of unenforceable conditional gifts in Australia
Conditions contrary to public policy or morality:
- A gift contingent upon a beneficiary severing ties with family members.
- A gift bequeathed to the recipient with the stipulation that they undertake illegal activities.
Vague or Ambiguous Conditions:
- An inheritance given on the condition that the beneficiary “leads an honourable life”, without defining what that means.
Conditions Restraining Personal Freedoms:
- A gift of money to a child on the condition that restricts the recipient from marrying someone of a specific race, religion, or background.
Potentially Perpetual or Overly Burdensome Conditions:
- Land gifted to an organization with the stipulation it’s used for a specific purpose for an undefined, potentially infinite duration.
- A gift of property to a beneficiary with the condition they must reside there indefinitely.
What Rights Do I Have If Someone Wants To Take Back A Gift They Gave Me?
The basic principle is that a gift cannot legally be taken back once completed (meaning it was given willingly without any explicit conditions and accepted by the recipient).
That means the item is yours, and the original giver does not have the right to retrieve it without your permission.
If the gift was conditional (certain expectations or events were supposed to occur, and they haven’t), the giver might argue that it should be returned.
However, they must prove that clear and enforceable conditions were communicated and agreed upon at the time of the gift. If no such conditions existed or weren’t explicit, your right to the gift remains stronger.
Are There Ways To Settle Gift Disputes Without Going To Court In Australia?
Yes, there are several ways to settle gift disputes without going to court in Australia. Some of these methods include:
- Negotiation: This is the simplest and most common way to resolve a gift dispute. The parties involved in the dispute can negotiate a solution acceptable to everyone. This may include mediation, a process where a neutral third party helps the parties to communicate and reach an agreement.
- Arbitration: Arbitration is a more formal process than negotiation, but it is still less expensive and time-consuming than going to court. In arbitration, the parties agree to submit their dispute to a neutral third party, who will decide.
- Family dispute resolution (FDR): FDR is a service the Australian Government provides. It is a free and confidential service that can help families to resolve disputes without going to court. FDR mediators are trained to help families communicate and reach an agreement.
- Community justice centres: Community justice centres are not-for-profit organisations that provide mediation and other services to help people resolve disputes. They offer various services, including mediation, counselling, and support groups.
If you are involved in a gift dispute, consider using one of these methods to resolve the dispute without going to court.
But if you’re stuck with a more complex case of gift dispute, it is always best to talk to an experienced family lawyer to keep things at bay.
In A Divorce, Who Keeps The Gifts In Australia?
In Australia, gifts given by one spouse to another during a marriage are generally considered to be part of the matrimonial property pool. This means that they are subject to division during the divorce process. However, there are a few exceptions to this rule.
For example, a gift may be considered to be the separate property of one spouse if:
- It was given to them before the marriage or de facto relationship began.
- It was given to them in exchange for their own property, such as an inheritance.
- It was given to them specifically as a gift, and clear evidence supports this.
- It was given to them by a third party, and the other spouse had no contribution to the gift.
If a gift is considered to be the separate property of one spouse, then it will not be subject to division during the divorce process. However, if a gift is considered part of the matrimonial property pool, it will be divided between the spouses in a just and equitable manner.
Papathanasopoulos v Vacopoulos 
In 2007, Mr. Vacopoulos and Ms. Papathanasopoulos became engaged, and Mr. Vacopoulos gave his fiancée an expensive engagement ring.
Shortly after, the engagement was called off, and Mr. Vacopoulos sought the return of the ring, claiming it was a conditional gift based on the promise of marriage.
The court held that the engagement ring was a conditional gift in anticipation of their future marriage.
Since the marriage did not occur, the condition upon which the gift (the ring) was given still needs to be fulfilled.
Consequently, Ms. Papathanasopoulos was ordered to return the ring to Mr. Vacopoulos, as he was the one who had proposed and given a ring on the condition that it symbolized a promise to marry.
Secure Your Assets with Expert Guidance
Dealing with the delicate matter of gifts in legal disputes requires a careful approach.
At Justice Family Lawyers, we specialize in navigating these complex scenarios. Don’t let uncertainty dictate your decisions.
Reach out to our dedicated team today, and let’s ensure your assets are protected and your peace of mind restored.
It’s time to take control of your situation with a trusted advocate by your side. Contact us now!
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.