Does my soon to be ex-spouse retain (i.e donor spouse) all the gifts he has given me or will they be subjected to the laws on division of matrimonial assets? There are 2 types of gifts spouses give each other during the marriage.
| Types of gifts Explanation | Explanation |
| Inter-spousal re-gift | An item acquired by the donor spouse through inheritance or a gift from a third party and then he gives it to his spouse. (i.e A husband inherits a house from his uncle and gives it to his wife) |
| Pure inter-spousal gift | An item acquired by the donor spouse not through inheritance or gift from a third party. (i.e A husband purchases a house with his own hard earned money and gives it to his wife) |
The definition of ‘matrimonial asset’ is seen in Section 112(10) where it ‘excludes any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.’ Therefore, inter-spousal re-gift are not governed under the laws on division of matrimonial assets. The wife can keep the house given to her by her soon to be ex-spouse since he got it through an inheritance which does not fall under the definition of ‘matrimonial asset’.
On the other hand, pure inter-spousal gift falls under the definition of ‘matrimonial asset’ as seen in Section 112(10)(b) where it states ‘any other asset of any nature acquired during the marriage by one party or both parties to the marriage.’ Therefore, pure inter-spousal gifts are governed under the laws on division of matrimonial assets. The wife will not be able to keep the house given to her by her soon to be ex-spouse since he used his hard-earned money to purchase it. The Court can therefore order a division of the house during the divorce proceedings.
There are some exceptions where pure inter-spousal gifts do not fall under the definition of ‘matrimonial asset’ subjected to the Court’s discretion. Our divorce lawyers can advise you on the merits of your case.
