Impact of divorce on joint property in India

Impact of divorce on joint property in India

At the time of divorce, couples are often confused and uncertain about the division of property held jointly by them. The problem arises because eventuality of separation is not contemplated while purchasing jointly and there is no proper documentation.

Matrimonial responsibilities are no longer a domain of any single spouse. Both have to participate equally. Joint ownership of husband and wife, in property purchased after marriage, is a common feature. There are various reasons for preferring joint ownership in property.

  • Rebate in stamp duty for women investors
  • Tax benefits associated with joint ownership
  • Loan eligibility increases and repayment process become easy

When couples decide to part away, there are many issues to be addressed and the most important being the division of joint property. 

Many times, estranged couples have approached us to find a solution to their problem of division of property. We generally advise them to decide the same with mutual consent because litigation in this regard can be quite toiling.

Division of property at the time of divorce:

1.    Division by mutual consent: Division of property held jointly, can be smooth if there is a mutual understanding among the two for:

  • Ownership
  • Equity
  • Contribution

The partners get their share as per the equity/contribution.

2.    Proof of Contributions made for the purchase of property: The person who holds the title is the owner even if the other partner has contributed the purchase money in total. The other partner has to prove the financial contributions made by him to get the due share.

3.    Self-acquired property or inherited property: The self-acquired property is not part of any settlement at the time of divorce. The property to be inherited in the future does not become part of the settlement.  If the ancestral property has been partitioned or has devolved as per succession law and husband or wife have got their shares, then such property becomes self-acquired property qua the spouses and is not subject to settlement at the time of divorce.

4.    Joint loan: If the joint property has been bought on loan payable by both, then the parties have to split their liabilities accordingly, or one partner can bear the loan amount and be compensated by other.

5.    Disposal of joint property as per Section 27 of Hindu Marriage Act: The Hindu Marriage Act, 1955 contains a provision u/s 27 of the Act, for disposal of property presented jointly to the spouses, at or about the time of marriage. Joint property purchased after marriage is outside the purview of this section. However, if the parties have reached a compromise regarding such properties, Court may record the same at the time of passing the decree.

6.    Maintenance: Right to maintenance includes right to residence also after divorce. However, the right depends upon the terms of the decree of divorce. In Hindu law, any party can apply for the grant of permanent alimony and maintenance pendent lite. 

The amount of maintenance if not paid as directed, can be recovered from the property of the person liable to pay the same.

Smooth Sailing:

  • It is always advisable to engage a lawyer and prepare the documents relating to purchase of the property taking care of all reasonably expected eventualities. Proper documentation defining the claims based on equity makes division an easy affair later.
  • Selling the property and sharing the proceeds is also an option.
  • In case the joint property is a dwelling house, one can retain the house, and other can be compensated monetarily.

How to Claim Ancestral Property in India?

How to Claim Ancestral Property in India

Ancestral property can be defined in general parlance as the property, which has been passed on from one generation to another. There are two major conditions that a property has to fulfill in order to be an ancestral property these are as follows –

  • The property has to be four generations old at the least;
  • The same shouldn’t have been partitioned or divided into the past three generations.

Inheritance situations differ in matters of self-acquired property and ancestral property. Self-acquired property is the property that individual purchases out of one’s own income. In the case of self-acquired property, the owner can take away your share in the same. For instance, if your father has purchased a property out of his own money, he can exclude you from its inheritance. However, in the case of ancestral property, ones share cannot be taken away no matter what the situation.

The claim on an ancestral property comes through the act of birth. However, this claim into the ancestral property and the share that is given to each individual against his claim is determined by the successive generation. They decide the respective shares.

If the property is inherited from your mother, uncle, brother or grandmother, it is not ancestral property.

The partition of an ancestral property can be made by a Partition Notice or a Declaration to Separate, Partition Agreement. The partition can also be carried out through arbitration or through suits. An example of partition being, if the property is to be divided amongst five people, they will receive equal shares in the property i.e. 1/5th share each. With the development of the Hindu Succession Act in 2005, daughters too can have a share in the property. If denied a share in the property, a legal notice should be sent by the aggrieved to the erring party. Filing a suit for partition and contesting the same in court can also help in claiming the share. In case the property has been sold off without your consent, it is suggested that the buyer should also be added to a party and a suit should be filed to claim ones share.