Division of Property During Divorce
Property in marriage may be of various forms, namely:
- share in a joint business venture,
- dowry,
- presentations before, during or after marriage by friends and relations of either party or both parties,
- jewellery,
- matrimonial home etc.
In case of divorce, either of the party may approach the civil court to settle the property amongst the spouses and their children.
The Owner is the title holder
The spouse in whose name the property papers are made shall be the owner of the said property, even if the payment for the property has been made by the other spouse.
A wife has to prove her equal share in the property, which is in the name of the husband, in order to claim a share in it after divorce.
Stridhan
“Stridhan” includes the properties gifted to the bride before or after or at the time of marriage.
Husband does not have any share in Stridhan. It is a separate property of the wife and not the joint property of both husband and wife.
If someone refuses to return back your Stridhan or misappropriates it, they commit a criminal breach of trust under Sections 405 and 406 of the Indian Penal Code (IPC) and are bound to be proceeded against in the court.
You must take the following measures to protect your Stridhan-
- Make a list of all the gifts and properties received before, during and after marriage from your family, husband's family, friends and other acquaintances.
- Keep an evidence for all the gifts received. Also, ensure that the gifts and their bills are in your name and preserve these bills.
- You must have witnesses and their statements that will be an important evidence for movable gifts.
- Maintain a separate account in your name for your salary.
- You should make sure that the title to property given to you and those bought from Stridhan are clear and that the investments made from these assets are in your name.
Inherited Property
Inherited property cannot be divided between the couple in a divorce. It remains with the person to whom it has been transferred.
If you have any property which you have inherited from your parents, grandparents or anyone else, your spouse has no right over it.
Earnings
Your earnings are your separate property. Your in-laws or spouse have no right over your earnings be it acquired, earned or gifted during your marriage or after. This also includes earnings from a business, occupation or trade carried on by her and not her husband. All savings from and investment of wages, earning and property are deemed to be your property after divorce.
Division of Jointly Owned Property
In case of a property that has been bought by both of you, each of you can claim your share in that property. For this you must:
- Revisit bank accounts
- Determine individual contributions for e.g. down-payment and monthly installments made by each of you to arrive at the share of each spouse.
- Get the value of your property assessed to know individual share.
- Get the required paperwork done to transfer the property.
- Stamp paper and registration costs will have to be paid by you to make the transfer.
- You also have the option to sell the property and divide the proceeds.
- In case your spouse is retaining the property, he/she can buy out your share on the basis of its market value.
Power of the Court in division of Property
According to section 27 of the Hindu Marriage Act, the court has the power to pass decree only with respect to property which is jointly owned by both the parties.
The property of the parties acquired by them before or after the marriage is not within the purview of the section.
Mutual Settlement
Nowadays, both husband and wife contribute to the family's investment hence at the time of mutual divorce; you and your spouse can divide the property based on:
- ownership,
- individual contribution and
- mutual understanding.
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