Lawyers are very often asked in the event of a breakdown of a relationship between couples or between parents and children, what happens to a gift when someone asks for it back.

In most circumstances the legal position is that gifts will remain the property of the receiver and do not have to be returned.

For example the gift of an engagement ring is presumed to be an absolute gift and therefore not recoverable, should the engagement break off. What about payments made by one party either to or for services on behalf of the other one? The end of the relationship does not give the giver the automatic right to reclaim those monies. To get the money back there must be clear evidence that the monies were a loan, otherwise, they will be treated as a gift and not recoverable.

There are other presumptions lawyers rely on. One is called a Presumption of Advancement and this is where the law reflects a 19th Century understanding of family responsibilities. The law presumes that in certain circumstances when one person voluntarily transfers property into the name of another or contributes to its purchase, that a gift was intended.

This presumption applies between a husband and wife and between a parent and child. This presumption does not however apply the other way round.

It does not apply to a gift from a wife to a husband or from a child to a parent, nor would it apply to cohabiting couples.

You would be right in thinking that these presumptions appear somewhat out of date. They do indeed reflect Victorian sensibilities about the husband’s duty to maintain his family in return for their honour and obedience.

When it comes to what the lawyers call Real Property, ie land, the transfer of land must be in writing.

Handing over title deeds in a poker game does not, in law, have the effect of transferring the property to the winner of the hand.

What happens if you do sign a transfer of land over and you want to change your mind? The law recognises only three circumstances when that might happen.

The first is when the person who transferred the land did not understand what they were doing (the lawyers call that “lack of capacity”).

The second is that they don’t understand the nature of the transaction (what we lawyers call “non est factum”). The third, and one that involves a great deal of litigation, is of “undue influence”. That is that the relationship is such there is a relationship of trust and confidence between the parties where one exercises undue influence over the other.

This however, is a minefield in itself and will be the subject of a later article.