Divorced and Confused about Property division?

Divorced and Confused about Property division

Know more about the impact of divorce on Joint Ownership of Property

We have had many NRI cases of one or both spouses seeking our services because there were property issues to be settled. We generally advise people to go about it in an amicable manner.

Joint ownership is an option favoured to reduce the burden of several financial and legal obligations that are required to be met during the purchase of the estate. The ownership may be distributed among friends, relatives and most commonly between spouses. There are numerous pros and cons of such a type of possession.

Benefits of Joint Ownership of Property with spouse

  • Easy Affordability: When ownership is shared between spouses, it becomes much more feasible to get home loans as in that case two sources of income are considered.
  • Easy Transfer of Assets: Joint ownership of property reduces the hassles and complications associated with the transfer of assets after the demise of one of the owners.
  • Taxation: The co-owners enjoy the benefit of tax deduction in case of shared possession of the property if they have valid and separate sources of income.
  • Low Stamp Duty: The rate of stamp duty is much lower for women owning a property solely or jointly.

Problems associated with shared possession of assets

  • Legal Dispute: All the co-owners are liable if a conflict arises even if it is because of one of the owners.
  • Divorce or personal conflicts: It becomes cumbersome to decide how the property will be distributed between spouses post divorce.
  • Home Loan: In the case of any unprecedented event such as divorce, demise, loss of employment or any other severe medical condition, the co-owners become liable to repay the loan on time. The terms of payment of joint loan should be discussed beforehand to avoid such disputes.

How does somebody settle Joint Ownership of Property at the time of divorce?

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When a couple files for divorce, property division can be a major issue. There are many ways to handle this:

  • The mortgaged property can be sold to repay the loan. The excess of the amount can be then distributed mutually.
  • One partner can take over the ownership entirely by settling the share owned by the partner.
  • Remove one of the parties’ names from the loan account by letting the lending institution to assess the situation and the capability of the other party to repay the loan.

Though contingencies like divorce can never be known beforehand and no one would ever intentionally go through these, it is imperative for the couples to seek legal advice from experts before entering any contract of joint ownership.

When You agree to disagree & part ways – Divorce by Mutual Consent

divorce by mutual consent

The meaning of Mutual Divorce

  • Hindu Marriage Act, 1955, Section 13-B provides the parties the means to divorce by mutual assent through filing a petition in court. Mutual consent implies that both the parties agree for an amicable parting.
  • Mutual Divorce is an easy way of terminating a marriage and dissolving it legally. An essential requirement is the general consent of the husband & wife. There are two aspects to which Husband & Wife have to reach a consensus, and they are the alimony/ maintenance issues. According to Law, there is no minimum or maximum limit of support. It can be any figure or no figure at all. The next most significant consideration is the Custody of the child. It can also be accomplished efficiently between the individuals. The Custody of child in Mutual Separation can be shared or joint or exclusive depending upon the agreement of the parties.

When can you file for divorce by mutual consent?

  • The individuals thinking to dissolve their marriage are obliged to wait for at least one year from the date of the wedding.
  • They have to prove that they have been living separately for a year or more prior the presentation of the appeal for divorce and that through this period of separation they were unable to live together as a couple.

Where is the Divorce Petition filed?

  • Divorce Petition is filed in the family court of the city or district where both the partners have lived together for the last time and which has been their marital home.

Are there different laws of divorce in India for various religions?

  • There are separate laws of divorce for several religions in India. Hindus, Sikh, Jain, Buddhists are governed by the Hindu Marriage Act, 1955. Christians are administered by Indian Divorce Act-1869 & The Indian Christian Marriage Act, 1872. Muslims are commanded by Personnel Laws of Divorce and also the Dissolution of Marriage Act, 1939 & The Muslim Women Act, 1986.Likewise, Parsis have their law that is The Parsi Marriage & Divorce Act-1936.Another secular law called Special Marriage Act, 1954 is also there to cater to divorces in India.

How is a divorce petition by mutual consent filed? What follows in the Court?

  • The divorce petition is in the form of an affidavit. It is presented only in a family court. After filing the appeal and recording the statement of both the parties, the court adjourns the matter for six months.
  • Six months later the individuals are asked to present themselves again to the court for making a second motion verifying of the divorce petition filed earlier. The court then grants the decree of Divorce.

What if one party withdraws the mutual consent petition after filing in the court? What happens then?

  • During six months when the appeal is pending in the court, any of the partners is fully entitled to withdraw the mutual consent through an application to the court saying that she/he do not wish to divorce through mutual consent. In such situation, the court gives no divorce decree.

What should the other party do under such circumstances?

  • Under such circumstance, there is nothing available to the other party except to file an ordinary appeal for divorce under the provisions of the Hindu Marriage Act, 1950, Section 13.
  • In such situations divorce is granted only on defined grounds like torture, desertion, infidelity, the other spouse being mentally unsound, change of religion by another partner, venereal disease, a partner having renounced the world or being missing for more than seven years.

Can the spouse permit for remarriage without getting divorced from the present partner?

  • Remarriage without getting the Judgment of Divorce is a punishable offense with seven years of confinement.

If either of the mates is unheard of for a long time, can divorce be filed?

  • If the absence of the spouse without any information to the other spouse of his/her whereabouts for seven years continuously has any proof, an appeal is another possibility in this respect in the family court.