Joint property dispute after divorce

583 votes

 Explain this This screenshot is a LawRato client query under Property Law. The client is asking about a jointly owned property after divorce. What the client is saying Husband and wife purchased a property jointly. After divorce, the property is now in dispute. The wife has been paying the entire bank EMI from the date of purchase. Husband has allegedly not paid anything towards the EMI. Husband is also refusing to: sell the property, transfer/relinquish his share to the wife, or otherwise cooperate. The home loan is still outstanding. The client asks whether the property can be transferred only into the wife's name and whether the husband can transfer his share to his brother's name while the loan is continuing. Important legal point Simply paying all the EMIs does not automatically make the wife the sole owner if the husband is a co-owner under the title documents. The ownership will primarily depend on the sale deed/title documents, ownership shares, divorce decree/settlement, and the terms of the home loan. Also, if the property is mortgaged to the bank, any transfer of the husband's share generally requires consideration of the bank's consent/NOC and the existing mortgage/loan obligations. The husband cannot simply transfer the property in a manner that defeats the bank's rights. Professional LawRato response you can post If the property is jointly registered in the names of both husband and wife, the wife’s payment of the entire EMI does not by itself automatically extinguish the husband’s ownership rights. However, the fact that the wife has been paying the EMIs may be relevant in determining the parties’ financial claims, particularly depending upon the divorce decree, settlement agreement and source of funds. The practical solution would generally be to examine the sale deed, loan/mortgage documents and divorce settlement/decree. If the husband agrees, his share may potentially be transferred/relinquished in favour of the wife through an appropriate registered instrument, subject to the bank’s consent/NOC and restructuring or continuation of the loan as permitted by the bank. The husband also ordinarily cannot unilaterally transfer his interest in a mortgaged property in a manner prejudicial to the bank’s rights. Any proposed transfer to his brother would therefore require careful examination of the mortgage and title documents and may require the bank’s approval. If the husband is unwilling to cooperate, the wife may need to explore appropriate civil remedies regarding declaration, partition, contribution/reimbursement of EMI payments and other reliefs, depending on the facts.

Advocate Pooja Patel LawRato

736 votes

If the property is jointly owned, the wife cannot make it solely hers just by paying the EMIs. The husband must legally transfer/relinquish his share and the bank’s consent may be required because the loan is still outstanding. If the husband refuses, then you can seek appropriate legal relief from the court. We shall connect to discuss.

Advocate Rahul Kumar LawRato

851 votes

Paying all EMIs does not automatically make you the sole owner or remove your husband’s share. If he refuses to cooperate, you can seek partition and claim reimbursement or adjustment of payments made towards his liability, subject to proof. Partition will separate your respective shares, not automatically give you the entire property. He may transfer his own share to his brother, subject to the mortgage, loan conditions and court orders, but cannot transfer yours. If a transfer is threatened, you can seek an injunction. The sale deed, loan documents and divorce settlement should first be examined.

Advocate Nikhil Karwal LawRato

930 votes

This is a situation, where the husband cannot transfer the property to his brother as the bank in which the loan is ongoing will not allow for the same. On the other hand, even the wife cannot compel the husband to sell the property to her. The best possible solution is for the wife to file a suit for partition and recovery of money already paid which was supposed to be paid by her husband as his part of EMIs. Along with this, the wife should seek an injunction restricting the husband to create a third party interest till the pendency of the suit.

Advocate Puneet Srivastava LawRato

901 votes

Since the property is jointly owned and the home loan is still outstanding, the wife cannot unilaterally convert the property into her sole name merely because she has been paying the EMIs. The husband’s share can be transferred/relinquished through a registered deed, but the bank’s consent/NOC will generally be required because the property is mortgaged. The husband cannot simply transfer his share to his brother to defeat the wife’s rights or the bank’s security. The wife may also have a claim for contribution/reimbursement regarding the EMIs paid by her. The divorce decree/settlement, sale deed and loan documents should be examined before deciding the appropriate remedy, which may include a registered relinquishment/release deed, settlement, or appropriate civil proceedings.

Advocate Madhvi Chopra LawRato