A SECOND THOUGHT TO GIFTS

Hannah Wanjiku

In our recent times, the idea of what constitutes a good relationship varies among different people. These ideas are generally referred to as implicit theories of relationships whereby people hold either destiny beliefs or growth beliefs. The theories affect how the relationship is between people. A common way in which people today deem as a means of expressing love is through giving gifts. This is commonly known as a love language. The rate at which people give gifts to their spouses has significantly increased over the past few years. According to a study carried out, Kenyas growing middle classes are giving away 22% of their monthly income, often through informal gifts and support to family, friends and neighbours. This has largely contributed to the growth of many sectors in the economy such as marketing of gifts. There has been increase of gift shops with many gift ideas such as flowers, jewelry, clothes and even cars. Recent research in marketing has shown that various factors such as attachment orientations, relationship satisfaction, and relationship commitment influence gift giving behavior (Nguyen and Munch, 2011). The idea of gifts has even improved from just simple gifts to greater gifts of a higher value such as cars and houses which may lead one to rethink the whole idea in case of a split.

Introduction

A gift is the voluntary transfer of property to another without compensation. The classical elements of a valid gift are: An intention to give and surrender title to and dominion over the property (i.e. donative intent), delivery of the property to the done and acceptance by the donee. ( Dobson v. Vick, 27 So. 3d 469, 475 (Ala. 2009))The whole gift giving concept draws its origin from traditional and cultural practices whereby gifts were given especially during marriages. They were given as a form of affection by the groom to the bride. In the present society, gifts are given during marriages as a custom and also by people who are not officially married or otherwise referred to as dating couples. It is clearly evident that between married spouses and unmarried couples, the latter is more prevalent in gifting. Purely sentimental gifts may potentially have unexpected repercussions. This covers giving up control of the present after it is received, as well as gift taxes. Even with pure intentions, there is the risk of making a mistake if one does not comprehend gifts and joint ownership.

Gifts between spouses 

Section 3(1) of the Marriage Act No 4 of 2014 defines marriage as the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the act. Therefore, the rules governing gifts between spouses are subject to the above provisions meaning that marriage firstly has to be established. Section 15 of the Matrimonial Property Act provides; where a spouse gives any property to the other spouse as a gift during the subsistence of the marriage, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient. In a happy marriage, giving each other gifts is a typical way to show one another how much you care. And yet, what happens to these gifts in the event that a marriage collapses and results in divorce? 

The above provisions of the Matrimonial Property Act offer a guiding light to the nature or rather the fate of these gifts. In a marriage, there are two types of gifts which may be given, that is, intervivos gifts and donatio martis causa. The intervivos gift is one among living persons and delivery, donative intent and acceptance have to be proved for the validity of the gift. The rules governing Donatio mortis causa gifts have been set out in Section 31 of the Law of Succession Act which basically includes gifts made in contemplation of death. Section 124 of the Transfer of Property Act, which specifies that "A gift comprising both existing and future property is void as to the latter," should be noted. This indicates that a person who makes a gift pledge is not entitled to the promised property and that the gift is null and void, making it impossible to enforce. 

Gifts between Unmarried Spouses

In a time of a huge economic crisis, it would only feel right for a couple to co-share responsibilities which may include sharing a home, car and other household items without knowledge of which may lead to legal implications. Purchasing a house together may make financial sense, but co-owning a property entails legal responsibilities and hazards for each partner. If one partner already owns a house (or other asset) and adds their partner to the title, the same risks and responsibilities may apply. Depending on how the property is titled, unmarried partners who purchase a home together may automatically inherit each other's portion of the property. When the property is transferred to the new owners as joint tenants with survivorship rights, this occurs. This is what is commonly happening in the world today with unmarried couples gifting their patners items such as cars and houses and documenting everything on social media platforms such as Instagram. This is not particularly wrong as it serves as a way of making history or rather creating memories.

A second thought comes in when after giving all these gifts, with a house as an example, and there is no cohesion between the parties which calls in for a split. Who does the house belong to among other shared items such as cars? A gift has a particular legal definition as something that is given or received without payment and for non-business purposes between two parties. A gift cannot be accepted unless certain requirements are fulfilled (Gruen v Gruen, 68 N.Y.2d 48, 505 N.Y.S.2d 849, 496 N.E.2d 869 (1986)): 

The object is being given with the intention of being a gift. 

The object is truly delivered by the giver to the recipient.

The present is accepted by the recipient from the giver.

A gift is recognized as lawful under contract law if it satisfies these conditions. The gift is therefore enforceable and, for the most part, irrevocable. Therefore, the giver forfeits authority over any money or property presented once it is effectively made.

Conclusion

No title has been placed to this act of gifting as either right or wrong. However, having the legal knowledge on these matters will consequently be an upper hand. Understanding the legal implications of gifting involves awareness of relevant laws and regulations, such as tax implications, gift limits, and potential consequences. With this information, people can be better equipped to make decisions and avoid any legal ramifications that might result from giving gifts. Additionally, it can help create a clear and legally solid basis for the transfer of assets, promoting understanding and averting disagreements between the parties concerned. Because of this, legal acumen is essential for negotiating the complexities of gifting and guaranteeing that the procedure is both morally and legally sound.