JEWELLERY & DOWRY

Given the increase in the population of the Asian community over recent years, it is perhaps no surprise that the English courts have seen a massive rise in cases concerning dowry issues and, in particular, jewellery exchanged on marriage. The whereabouts of jewellery, its origins, its value and whether it has been unlawfully retained by one spouse are just some of the issues the court will need to tackle at an early stage.

The Dowry Prohibition Act 1961 (which made it a criminal offence to give or receive dowry) defines dowry as “any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person...but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”

Most Asian marriages in this country remain arranged by elders or a ‘middle man’. The middle man is often rewarded with gold jewellery and there is an engagement ceremony (Karmi or Sagan) at which the bride’s Father pay respects to the bridegroom and his family at the Father’s home. Gifts of gold jewellery are usually offered and traditionally it is given, in part, as way of building up ties with the bridegroom’s family to elevate their social status within the community. Further offerings of jewellery and garments provided to the bridegroom’s parents at the Milni. The bride has historically, in addition to receiving property from her parents, been given Sulkham from her in laws as the price to the bride’s parents.

With this in mind it is easy to see how disputes can arise on separation because, whilst there is no uncertainty within the Asian culture, English courts are guided by English legal principles and not the laws and customs of any one particular culture. Though some Judges are sympathetic to origins of jewellery I am reminded by one particular case where a Judge told my opponent that, simply put, the jewellery belonged, on strict English law, to the recipient of the gift (ie my client – the Wife) regardless of the fact the marriage had lasted less than a year and all the jewellery had originated from the Husband’s side of the family. I am not saying that approach is correct because in the leading case of Samson v Samson [1960] the Judge stated if there is no clear intention on the part of the person providing the gift then a conclusion should be formed that the gifts originating from Husband’s side of the family should be for the Husband and gifts from the Wife’s side for the Wife. The intention will be an issue for the court to consider on evidence but it could be argued that the Trousseau is the Wife’s because it was an outright gift.

It seems the Modus Operandi in these cases is often for one of the parties to deny any knowledge of being in possession of the jewellery. In the alternative, for example when a Wife leaves the family home, the Husband will contend that all items of jewellery were taken with her on departure. The Wife then faces the legal burden of proving, on the balance of probabilities, that she received the dowry and that it is being retained by the Husband, or more often than not, his Mother (at which stage we may want to consider action against the in laws). Evidentially it is not usually difficult to establish that jewellery was given, especially in an age of technological advances where these days the use of i phones and smart phones seem to capture the ceremonies from a variety of angles.

Of course the most difficult hurdle to surmount is persuading the court on the whereabouts of the jewellery. The circumstances surrounding the separation are usually an important feature and the court will usually want to hear evidence from the parties to form a view on which spouse is telling the truth. If one party can convince the Judge that his or her possession has been retained or taken the court can order the jewellery to be returned, in default of which a lump sum payment made to the innocent party to compensate for the loss. It is important to realise that the jewellery may not necessarily be viewed in isolation to the other matrimonial assets and ordinarily its value may be factored into any considerations about the financial settlement. Experts will usually be asked to value the jewellery based on photographic evidence.

One must always bear in mind the cost of litigating such an issue. Often a client, given the sentimental value of any one particular item, will instruct me to fight issue on a point of principle. That is understandable on any analysis where an item of jewellery has been passed down the family, however, one eye must always be turned to the legal costs involved and whether this outweighs the value of the jewellery. Before any decision is made a cost analysis should be carried out to consider the clients exposure to legal costs because this is an issue which cannot normally be resolved without a full blown final hearing where the judge will have the benefit of hearing evidence. That is an expensive process though it is always open for judge at the final hearing to penalise a spouse with an order that he or she pays the other spouse’s costs on the basis that they have not told the truth.

There are many lines of argument to pursue in cases involving jewellery but the current case law does seem, in my view, to favour the Wife. That is not without appreciation, however, of the Husband’s intentions and the intentions of his family when the dowry passed.

I am regularly instructed in connection with Asian divorces and can be contacted about this article on 0121 203 5309 or email me at mark.hands@irwinmitchell.com