Explained: Wealth division between partners post-divorce

Geetanjali Sinha (name changed), 51, took a divorce from her husband 15 years ago. So overwhelmed by the prolonged emotional turmoil in life, Sinha barely gave a thought to the division of finances and property as she decided to sign the dotted line.

“We had two joint accounts and a few big-size investments made under my name soon after we got married. We also bought a new apartment during our happier times but I got nothing after my divorce. Back then, I was too distraught to fight for what was my ‘legal right’ since my emotions took precedence over critical thinking,” Sinha, who resides in Noida, told Money9.

This isn’t a very unique case in India’s divorce history since most married women are not aware of their financial rights within a marriage. Either they trust their partners blankly or aren’t empowered enough to take financial decisions by themselves. Its fashionably considered the husband’s department. But what happens when a marriage fails? Women are predominate losers!

Lack of awareness

“Indian women are generally not aware of their right to “Streedhan”. As per Section 14 of the Hindu Succession Act, 1956, a woman has an absolute right to all the movable and immovable assets or gifts that a woman receives before, during, or after her marriage from either side of the family,” Vijay Pal Dalmia, Advocate Supreme Court of India and Delhi High Court, Partner Vaish Associates Advocates said.

Divorce cases have witnessed constant upheaval over time but the rate has increased significantly post Covid-19 pandemic.

“Divorce cases in India are on an all-time high as the Family Courts these days are flooded with Divorce and Maintenance cases. It can be construed that the lockdown due to Covid in 2020 acted as a catalyst giving birth to fresh divorce cases in India. We receive almost 8-9 divorce queries and the number of queries increase during weekends,” Ishita Sinha, Advocate, Supreme Court of India stated.

Mutual consent divorce over contested divorce

When marriage counsellors are unable to bring both the man and his wife to patch their differences, the door for mutual consent divorce opens up. It is a much better solution compared to contested divorce when the two parties fight it out in the court of law.

A mutual consent divorce is the simplest, effective, quick and  inexpensive mode of divorce as compared to any other form of divorce. The advantage of mutual divorce is that in most cases, the married couple amicably decide about the custody of their child and the distribution of wealth is done through a proper contract.

However, it is feasible only when the estranged couple settles issues like returns of articles belonging to the wife, rightful division of finances, agreement over alimony and custody of children.

Property division

The biggest cause of friction during property division arises when its jointly owned by the contesting couple and it becomes worst when one of the individuals is paying/ paid the EMIs of the home loans and the other one has contributed in the down payment. Such disputes are often solved by the interference of the court.

“In case of contested divorce, factors such as existence of child, whether the property is self-acquired or in the name of husband, income of the wife, financial dependency of the wife on husband, whether wife has any self-acquired property in her name or the owner of any property on her name – all of these become crucial,” Sinha explained.

Meanwhile, property distribution in the case of mutual divorce is decided amicably between a couple.

Joint-ownership

If a couple has a property in joint-ownership, they either settle the ownership through a contract amicably or they can dispose off the property and share the sale proceeds amongst each other and if the contesting couple do not reach to a settlement then the Hon’ble Court will decide accordingly.

Now, suppose there are two case scenarios – one where husband is the single bread earner in the family and second where both partners are professionally occupied. How will the property be divided in each case?

“In case of such a divorce where husband is working while the wife is a home maker, the wife can claim equal right in the property owned by the husband. If there is a child out of the said wedlock, the child being a co-parcener is entitled to his/ her share in the ancestral property. Whereas, when both the husband and wife are working it is either decided by both the parties through a valid contract about the division of the property or the Hon’ble Court further decide looking into the aspects of number of children, income and social status,” Sinha said.

How is alimony decided?

Alimony is the legal obligation of a person to provide financial support to the spouse after marital separation.

According to Sinha, alimony is decided by the court keeping various factors such as number of children, education and monthly maintenance of the children, etc. In case if there is no child then factors such as educational qualification, income and societal status are taken into consideration by the Hon’ble Court.

Welcome change

“Thanks to social media, electronic and print media, and education – women have started asserting their rights in the matters relating to finances, properties and their personal life. There is a massive shift in women’s mindset which is applaudable,” Vijal Pal Dalmia said.