Perspective | Part 1: A Theoretical and Practical Study of the Rules Governing Gift Money and the Return of "Three Golds" (Theoretical Part)

Given the length of this article, it is divided into two parts: the upper part is the theoretical part, focusing on theoretical research, mainly analyzing the legal nature of betrothal gifts and "three golds", the applicable laws and judicial opinions for their return; the lower part is the practical part, focusing on practical research, mainly conducting in-depth analysis of typical cases in judicial practice, and providing feasible practical suggestions.

So-called "betrothal gifts" refer to gifts of money and valuables given by one party and their family to the other party for the purpose of marriage, according to local customs. Betrothal gifts usually include cash, gold jewelry, gifts, etc., and are a kind of gift associated with the engagement. In terms of their legal nature, they are generally considered conditional gifts or purposeful gifts - that is, the purpose of giving betrothal gifts is to bring about the marriage; if the marriage does not occur or lasts for a very short time, the purpose of the gift cannot be achieved, and the corresponding property should be considered for return to restore fairness. Chinese law does not regard betrothal gifts as "equivalent exchange" for buying a marriage; on the contrary, the Civil Code of the People's Republic of China explicitly prohibits the act of soliciting property in the name of marriage. The engagement itself does not have the legal effect of compelling marriage, but the property relations arising from the engagement, such as the giving of betrothal gifts, are subject to legal adjustment. The party giving the betrothal gifts does not irrevocably give up the property; when specific conditions are not met, they have the right to claim a return according to the law to prevent unjust enrichment and protect legitimate rights and interests.

"Three golds" usually refers to a set of gold jewelry given by the groom to the bride during the engagement or wedding, generally including a gold necklace, gold bracelet, and gold ring (sometimes also referring to other valuable jewelry; there are also "five golds" and "seven golds" in society). In law, "three golds" are often regarded as part of the betrothal gifts or related engagement property. In practice, courts often regard "three golds" and other jewelry as property given for the purpose of marriage, and the gift is also conditional upon the establishment of the marriage. That is to say, "three golds" are not simply personal gifts or the bride's premarital property, but conditional gifts in the engagement. If the marriage is not actually concluded or maintained, "three golds" should in principle be treated in the same way as betrothal gifts, and may need to be returned or returned at a discounted price. It should be noted that "three golds" are different from the bride's dowry (dowry is the property given by the bride's family to the new couple), but property given by the groom to the bride based on the engagement, and still falls under the category of betrothal gifts in nature. Therefore, whether it is cash betrothal gifts or valuable items such as "three golds", their legal definition is a gift with a specific marital purpose, not an irrevocable transfer of property rights; once the marital purpose is lost, it may be required to be returned.

China's marriage and family laws are imbued with the values of upholding freedom of marriage and prohibiting profit-making through marriage. The general provisions of the Marriage and Family Chapter of the Civil Code clearly state: "It is prohibited to arrange marriages, buy and sell marriages, and other acts that interfere with freedom of marriage. It is prohibited to solicit property through marriage." This mandatory provision indicates that the act of soliciting large sums of money under the guise of marriage violates public order and good customs and the spirit of the law, and the property relations involved are not protected by law. For example, if one party takes advantage of the other party's willingness to get married to extort large sums of money and property, or even engages in "marriage fraud" or actually collects money under the pretext of marriage, the court will resolutely deny the legitimacy of such behavior. Betrothal gifts should be a goodwill gift to promote marriage and cannot be transformed into a tool for buying and selling marriages. Therefore, in judicial practice, for betrothal gifts that are clearly beyond the scope of customary rationality and have a transactional nature, the courts tend to determine that the attached marital conditions have not been met or that the behavior violates the mandatory provisions of the law, thus supporting the request for return to curb the bad practice of soliciting property through marriage.

In summary, betrothal gifts and "three golds" are legally defined as a special kind of gift: it is conditional upon the establishment of a marriage and is subject to the principles of freedom of marriage and public order and good customs. Once the marriage is not established or there are illegal circumstances, the gifted property should be returned or distributed according to law, thereby balancing the interests of both parties and maintaining ethical and legal order.

The Marriage and Family Chapter and the principle provisions of the Civil Code of the People's Republic of China: Although the Marriage and Family Chapter of the Civil Code of the People's Republic of China does not have specific provisions on engagement property, its general principles and prohibitive provisions provide a basic basis for handling disputes over betrothal gifts. Article 1042 of the Civil Code establishes the principle of prohibiting the solicitation of property through marriage. In addition, the provisions of the General Principles Chapter of the Civil Code on conditional civil acts can also serve as a theoretical basis: the giving of betrothal gifts can be regarded as an act with a condition of termination (if the marriage is not concluded or is dissolved, the property is returned). In a broad sense, the solicitation of large sums of money without marriage registration may also involve the provisions of the Civil Code on the return of unjust enrichment (if it cannot be directly adjusted through the Marriage and Family Chapter, the principle of unjust enrichment can be considered to claim the return of property). However, in judicial practice before and after the enforcement of the Civil Code, courts are more inclined to handle the return of betrothal gifts based on the special provisions of the judicial interpretation of the Marriage Law and the interpretation of the Marriage and Family Chapter of the Civil Code, rather than general unjust enrichment clauses, to reflect the specialized adjustment of disputes over engagement property.

Article 5 of the Interpretation (I) of the Marriage and Family Chapter continues the rules of the original judicial interpretation of the Marriage Law and clarifies the statutory circumstances for the return of betrothal gifts. This article stipulates: If the parties request the return of betrothal gifts paid according to custom, the people's court shall support the request if the following circumstances are found:

(I) The parties have not gone through marriage registration procedures;

(II) The parties have gone through marriage registration procedures but have not actually lived together;

(III) The payment was made before marriage and has caused financial hardship to the payer.

The application of items (2) and (3) above is conditional upon the divorce of both parties. This judicial interpretation essentially establishes the "three major elements" rule for the return of betrothal gifts, which is basically consistent with Article 10 of the original "Interpretation (II) of the Marriage Law." In other words: ① If the man and woman ultimately do not register their marriage, the betrothal gift should in principle be returned; ② If the two parties register their marriage but have not lived together (such as a flash marriage followed by separation) and have now divorced, the return can be supported; ③ If the amount of the betrothal gift is huge, the giver has suffered serious financial hardship due to the payment of the betrothal gift, and the two parties have divorced, the return can be considered. This qualification provides direct discretionary basis for judicial practice; if any of the above situations are met, the court should support the request for the return of the betrothal gift. When applying it, it should be noted that the situations of "not living together" and "financial hardship" can only be invoked at the time of divorce; if the marriage has not yet been dissolved, the conditions for return are not met.

Given the continued high incidence of disputes over betrothal property in various places, the Supreme People's Court issued the "Provisions on the Application of Laws in Handling Cases Involving Disputes over Betrothal Gifts" (hereinafter referred to as the "Betrothal Gift Dispute Provisions") in 2024, which came into effect on February 1, 2024. The provisions further standardize and improve the difficult issues in judicial practice, including: clarifying the scope of betrothal gifts, refining the principles for handling the return of betrothal gifts, and clarifying the qualifications of litigants. The most noteworthy aspect is the provision of guiding rules for disputes over betrothal gifts in the short term after marriage: the provisions point out that if both parties have registered their marriage and lived together, when one party requests the return of the betrothal gift paid according to custom upon divorce, the people's court generally will not support it. In other words, according to traditional rules, if a couple has indeed married and lived together, the betrothal gift is usually not returned. However, the new rules further supplement the exceptional circumstances: if the time of cohabitation is short and the amount of the betrothal gift is excessive, the people's court may, based on the actual use of the betrothal gift and the flow of dowry, comprehensively consider factors such as the amount of the betrothal gift, the length of cohabitation, whether children were conceived, and the fault of both parties, and determine whether to return the betrothal gift and the specific proportion of the return in conjunction with local customs. This provision breaks away from the rigid practice of "no return once cohabitation occurs," giving judges the discretion to adjust in cases of "flash marriage and divorce, and excessive betrothal gifts" to balance the interests of both parties. In addition, the provisions also clearly state that if one party uses the betrothal gift as an excuse to obtain property through marriage, and the other party requests a return, the people's court should support it. This directly targets "marriage fraud," emphasizing zero tolerance for the phenomenon of obtaining money through marriage, and fully reflects the judicial negative assessment of "marriage fraud." In summary, the "Betrothal Gift Dispute Provisions," as the latest judicial interpretation, together with the Interpretation (I) of the Marriage Chapter of the Civil Code, constitute the main legal basis for handling the return of betrothal gifts and three golds, with Interpretation (I) focusing on the rigid conditions for return, while the new rules supplement the principle of discretionary handling and the anti-"marriage fraud" orientation, complementing each other. In practice, special provisions should be applied first, and then general principles should be taken into account to achieve accurate and unified application of the law.

According to the aforementioned legal provisions, whether a betrothal gift is returned and the extent of the return depends on the development status and specific circumstances of the marriage relationship. In judicial practice, the following typical situations can be roughly distinguished:

In this case, the return of the betrothal gift is the clearest, as the basis of the marriage has not yet been formally established. According to Article 5, Paragraph 1 of the Interpretation (I) of the Marriage and Family Chapter, if the man and woman have not registered their marriage, the purpose of giving the betrothal gift is frustrated, and the court should support the return of the betrothal gift. In practice, the court usually orders the woman to return most or all of the betrothal gift already paid by the man. It should be noted that if the two parties are only engaged but have not cohabited, the betrothal gift is often returned in full; if they have not obtained a marriage certificate but have held a wedding according to custom and cohabited briefly, then in some areas, the court considers that there is indeed a fact of engagement, and may slightly reduce the amount of the return. However, in general, if the marriage certificate is not obtained and the couple breaks up, the return of the betrothal gift is a matter of principle. Reasons for claiming "no return" (such as "intimate relationship has occurred" or "the betrothal gift is what the woman deserves") are usually difficult to support in this situation, because the law better protects the property rights of the giver under the freedom of marriage. For example, in a case of betrothal property dispute between Chen and Yin heard by a court in Anhui Province, the two parties held a wedding according to rural customs but did not register their marriage. The man successively gave the woman betrothal gifts totaling hundreds of thousands of yuan, including a meeting gift, a gift of money, and three gold jewelry. Eventually, they broke up due to emotional discord, and the man sued for the return of the betrothal gift. The court determined that the engagement had been terminated and the two parties had not entered into a legal marriage, and according to the judicial interpretation, the betrothal gift should be returned. After comprehensively considering local customs, the very short time of cohabitation, and the fact that the total amount of the betrothal gift far exceeded the local average, the court ordered the woman to return the vast majority of the betrothal gift to protect the man's legitimate rights and interests (in this case, because some of the betrothal gift had been used for wedding expenses or was difficult to return, the court allowed a small portion to be retained by the woman without return). It can be seen that in the case of breaking off the engagement without obtaining a marriage certificate, the law tends to restore the gifted property to its original state to the greatest extent possible, avoiding unjust enrichment of the recipient.

In this situation, there is a legal marriage in form, but the marriage has not actually functioned in substance. A typical example is registering the marriage but separating soon after due to arguments, or the woman returning to her parents' home after the wedding and the couple not establishing a common life. According to Article 5, Paragraph 2 of Interpretation (I), if a marriage is registered but the couple does not cohabit, the return of the betrothal gift can be supported upon divorce. This essentially reflects that even if there is a legal marriage, the marriage has not actually been "combined," and the purpose of giving the betrothal gift has still not been achieved. In this case, the court will generally order the return of most of the betrothal gift. For example, in a typical case (a divorce dispute heard in Guangyuan, Sichuan), the two parties got engaged and registered their marriage shortly thereafter, but due to personality conflicts, they separated soon after marriage. Although they had a marriage certificate, they had almost no cohabitation. The man sued for divorce and requested the return of the betrothal gift of 100,000 yuan and "three gold" jewelry. After hearing the case, the judge pointed out that according to the "new rules on betrothal gifts," betrothal gifts are not generally returned if the marriage is registered and the couple lives together, but in this case, the marriage was only in name, and the cohabitation time was extremely short, which can be considered as meeting the requirement of "not living together" in Interpretation (I). Through mediation, the woman agreed to divorce and returned 60,000 yuan of the betrothal gift and the "three gold" jewelry on the spot, and the man gave up the request to return the remaining portion and wedding expenses. This case shows that in the case of a flash marriage and divorce, even if a marriage certificate is obtained, as long as it is proved that no common life has actually been established, the court will still support the request for the return of the betrothal gift. However, considering that there is a legal marriage relationship between the two parties, the amount returned is usually not the full amount, but is reduced according to the circumstances to balance the interests of both parties. The key to the judgment of such cases lies in determining the fact of "not living together," which can be judged through evidence such as the length of cohabitation, whether the couple jointly managed the family, and whether there was sexual activity/childbearing. Once a marriage that exists only in name is confirmed, the return of the betrothal gift is justified, preventing the formal marriage from obstructing substantial fairness.

This is a more complex situation. In some rural areas, both men and women may have held a traditional wedding ceremony and started living together, but for some reason, they delayed registering their marriage, and later their relationship broke down and they separated. In this case, the two parties have no legal marital relationship. According to the provision of Article 5, Item 1, "Failure to register the marriage," in Interpretation (1), they could request the return of the betrothal gift. However, considering that the two parties have indeed lived together as husband and wife for a period of time, if a simple application of unmarried treatment is used for a full refund, it may be unfair. Therefore, most courts adopt the practice of returning part of the betrothal gift in such "de facto marriage" situations. In judicial practice, the return ratio is usually determined based on the length of time the two parties cohabited, their living conditions, and the specific use of the betrothal gift. For example, if the two parties have lived together for a short time and have no children, the return ratio can be higher; if they have lived together for many years or even have children, the return request may not be supported or only a small part may be supported. In addition, if part of the betrothal gift has been converted into the bride's dowry and used for their joint living expenses, this part will also be deducted accordingly when the return is made. In short, for marriage without a certificate but with cohabitation (i.e., unregistered but cohabiting), the court upholds the principle of compromise and balance: it must both uphold the legal principle of prohibiting illegal solicitation of money and respect the established fact that both parties have established a de facto marriage. Therefore, it usually rules to return part of the betrothal gift. For example, in Hubei, a court once ruled that the woman should return about half of the betrothal gift and jewelry in a case where the couple married according to custom but did not obtain a marriage certificate and later broke up, in order to compensate the man's losses while also taking into account the woman's contributions during the cohabitation relationship. It should be emphasized that there is no explicit legal provision for this situation, and it falls within the scope of judicial discretion. Judges often refer to the spirit of Interpretation (1) and make analogies to the situation of "married cohabitation but short-term divorce," and the core consideration is still the degree of realization of the purpose of marriage and the balance of property gains and losses.

According to traditional judicial interpretations, if a man and a woman both register their marriage and live together, the purpose of the betrothal gift has been basically achieved, and in principle, it cannot be requested to be returned. However, in reality, some cases of "flash marriage and flash divorce" or short-term marriage failure have occurred: the couple cohabited for a very short time after marriage and then divorced, and the amount of betrothal gift involved was huge, often causing significant economic losses to the man or his family. In response to this situation, the newly issued "Regulations on Betrothal Gift Disputes" has made flexible provisions. According to these regulations, if a couple has lived together and requests the return of the betrothal gift at the time of divorce, the court generally does not support it, unless there are special circumstances: that is, the cohabitation time is short and the amount of the betrothal gift is too high. In this special case, the court can break through the principle of "no return at all" and return part of the betrothal gift at its discretion. The degree and standard of discretion depend on the comprehensive consideration of various factors, including: the actual use of the betrothal gift (whether it has been spent or converted into joint property of the couple), the bride's dowry, the relative high or low of the amount of the betrothal gift in the local area, the length of time the couple lived together, whether there are children, and the fault of both parties in the cause of the marriage breakdown, etc. For example, in a case heard by the Xinzhou District Court of Wuhan City, the two people got married for only one week and then got divorced. The man claimed that the woman had suspected fraud and demanded a full refund of more than 110,000 yuan in betrothal gifts and jewelry, while the woman believed that since they had obtained a marriage certificate and lived together, it should not be returned. After hearing the case, the court believed that the two parties had only known each other for more than a month from the time they met to the time they got married, their emotional foundation was extremely weak, they separated after only one week of living together, and they did not form a stable marital community. The amount of the betrothal gift was as high as nearly 90,000 yuan, and they did not have children after marriage, which met the conditions of "short time and high amount." In addition, it was found that the woman did not have the intention of living with the plaintiff for a long time, which shows that there was a certain degree of fault on her part. Based on this, the first instance judgment granted the divorce and, at the same time, determined that the woman should return 70,000 yuan of the betrothal gift and jewelry such as a diamond necklace and rings. In the second instance mediation, both parties reached an agreement to change the woman's return to 50,000 yuan and jewelry. This case strictly followed the spirit of the new regulations: first, it confirmed the general principle of no return, but in view of the extremely short duration of the marriage and the high amount of property paid, it then considered various factors to make adjustments, and finally achieved a fair settlement. It can be seen that for short-term marriage divorces seeking betrothal gifts, it is very dependent on the judge's discretion and comprehensive consideration. From the practice in various places, if the marriage lasts for a long time or both parties have children, such return requests will almost never be supported; while if the marriage is dissolved within a few months, the betrothal gift is particularly large relative to local income, and one party has obvious fault, the court may apply the exception rule and order the return of part of the betrothal gift. The application of the new regulations makes the law more flexible and humane, and to a certain extent, curtails bad behaviors such as "flash marriage and fraud for betrothal gifts."

In summary, the legal application system for the return of betrothal gifts in China is: first, clarify the rigid conditions, and then determine the proportion based on the specific circumstances. In the case where the marriage has not been concluded or there is no substantial cohabitation, the return of the betrothal gift is mainly to protect the giver; while in the case where the marriage relationship has lasted for a certain period of time, it is mainly to maintain the acquired marital interests, and only in special cases is part of the return considered. This set of rules both guarantees freedom of marriage, prevents the use of marriage to obtain unjust enrichment, and takes into account customs and practices, achieving substantial justice in different scenarios.

Compared with cash betrothal gifts, the return of jewelry such as "three golds" is sometimes more controversial. Because gold jewelry is often worn by the man on the woman's hand during the engagement or wedding, it has a certain status symbol and personal attributes. After the breakup, whether these personal items should be returned together has different opinions in practice. However, in general, current judicial practice tends to regard "three golds" as part of the betrothal gift or a gift attached to the betrothal gift, and whether or not it should be returned is determined according to the same standard as the betrothal gift.

According to the Supreme Court's new regulations on the definition of the scope of betrothal gifts, betrothal gifts include "gifts and important property." "Three golds," as valuable jewelry, is usually included in the category of "important property." For example, in a divorce case heard by the aforementioned Xinzhou District Court, the court clearly regarded the diamond necklace and rings purchased by the man as part of the betrothal gift and considered their return together with the cash betrothal gift. The Chen Mou v. Zhang Mou case on marriage contract property disputes issued by the Henan Provincial High Court also shows that the court ordered the woman to return the man's gold necklace, ring, pendant, and earrings, combined with the return of part of the cash betrothal gift. These examples show that judicial practice generally recognizes "three golds" as part of the betrothal gift, and its legal nature is equivalent to conditional gifts under the betrothal gift, rather than the woman's unilateral premarital personal property.

When the legal conditions for the return of betrothal gifts are met (such as breaking up before marriage or divorce after a short marriage), the return of "three golds" is usually required. The return can be in kind (returning the jewelry) or by valuation (returning the equivalent monetary value of the jewelry). In many cases, the woman has actually worn and used the "three golds," but this does not affect her obligation to return them—unless the jewelry is lost or damaged and cannot be returned, in which case compensation must be paid according to its value. When determining the proportion of the return, the handling of "three golds" differs from cash in that: jewelry has commemorative significance and usually does not depreciate or wear out in a short period. Therefore, if a partial return of betrothal gifts is ordered, the court often prioritizes the return of the three gold jewelry, while cash betrothal gifts may be partially returned depending on the circumstances. For example, in cases of flash marriages and divorces, the court may order the full return of the jewelry, while reducing the return of cash betrothal gifts to ensure fairness. Conversely, if the marriage relationship is longer or there are children, and the court does not support the return of betrothal gifts, the "three golds" are also not returned, considered as property gifted to the woman during the marriage. It should be noted that there is also a view that "three golds," as jewelry worn by the woman, has a certain dowry nature. If the marriage has actually been concluded, it should be considered the woman's personal property and not returned. However, this view has not been widely accepted, because dowry refers to gifts from the woman's family, while "three golds" are gifts from the man, with stronger conditional nature. Judicial trials emphasize the transactional background rather than the attributes of the items: any gift given with the purpose of marriage, whether cash or jewelry, belongs to the betrothal gift, and the return rules should apply equally when the conditions for termination of the engagement are met.

Of course, not all jewelry is of the "three golds" nature. If a man gives a woman jewelry during their courtship, and it cannot be proven to be related to engagement or marriage, it may be considered an ordinary gift and not included in the return of betrothal gifts. For example, in one case, a man gave a woman expensive diamond rings and necklaces, but due to the lack of an engagement background, the court considered it a simple courtship gift, not part of customary betrothal gifts, and ultimately rejected the man's request to return these items. Therefore, when judging whether a piece of jewelry should be returned as "three golds," the key is the timing and reason for the gift: if it was given at an engagement ceremony, wedding, or purchased for such occasions, it is most likely a betrothal gift and needs to be handled accordingly; if it was purely a gift during courtship, such as a holiday gift, it may not be considered a betrothal gift. In general, whether or not "three golds" are returned does not have a standard independent of betrothal gifts. It is more of a sub-issue of the return of betrothal gifts, subordinate to the general principle of returning betrothal gifts. However, in practice, judges will consider that the three gold jewelry has already been worn and used by the woman, and the sense of ownership is stronger psychologically. When making a judgment, they sometimes handle it with a compensation method to avoid escalating conflicts. For example, some courts, when ruling on the return of betrothal gifts, allow the woman to choose between returning the original jewelry or paying the man an amount equivalent to the value of the jewelry, giving her some initiative to reduce enforcement resistance. In summary, regarding the handling of "three golds," the judicial view is already quite clear: in principle, it follows the betrothal gifts, with flexible handling based on the specific circumstances, ensuring that the engagement gifts are not misappropriated as undue gains by the woman, while also taking into account the special nature of the items to ensure proper handling.