Impact Of Divorce On Joint Property In India

Divorce, at any time and age, is a consuming process. It is not only emotionally disturbing but it also creates financial turmoil. India, today has many trans-continental couples, mainly NRIs. For NRIs, the issue of joint property in India after divorce can be a complex situation to resolve. There are many questions that arise in mind of NRI couples who are seeking a divorce and the first basic query is about jurisdiction.

Jurisdiction

Jurisdiction is the power of the court to grant a valid decree. In the case of marriage and its dissolution, jurisdiction depends on the place, where the marriage took place or where the couple or any-one spouse resides, and religion of the couple. In the case of religion, it depends on the couple’s religion or on the circumstances (in case of Special Marriages Act) during their marriage.

It should be noted that in exceptional cases, court allows the NRIs to file for divorce in the country of their residence; if all the Indian laws are followed during the divorce proceedings. For this kind of arrangement, the consent of both parties is mandatory.

How To Handle Joint Property

In case both the spouses have invested in the property, then it is recommended to solve the matter of their property amicably through mutual consent, otherwise, it will invite a very lengthy legal process.

  1. If one of the parties wants to have full ownership of the property, then it is essential to have the consent of the other party. In order to avoid any future tussle, legally transferring ownership and title deed in name of the interested party is recommended.
  2. Selling the property and dividing the earnings, either equally or based on individual investment is another way to handle the situation. This process involves taxation. But it sorts out any future complication and is a recommended procedure for couples who don’t wish to have any future connection with each other.
  3. Some couples do not see divorce as the final stop for their relationship. They wish to continue to have a cordial relationship, this is usually the case with the couples who have kids. In such cases, continuing with the co-ownership of the property is an ideal option. Still, it is recommended to have a detailed agreement regarding the property, clearly mentioning the rights of each party.
  4. In case, any of the above-mentioned agreements is not reached, then the court will decide the fate of the joint property. The courts usually consider the contribution made by each party to the property and divide the assets accordingly. NRIs can consult divorce lawyers in such matters.

According to the Hindu Marriage Act of 1955, provisions under section 27 are given for disposal of the 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, the court may record the same at the time of passing the decree.

Liabilities Related To Property

When spouses have joint ownership in the property, they also have joint responsibility for any liabilities that might exist. If they have any loan or mortgage against the property, then it needs to be paid off. In case the property is in the name of one of the spouses and the other spouse has paid for its price, mortgage or EMIs; then the latter spouse can stake a claim in the property on the basis of their contribution made.

It is advisable to consult lawyers who will help you prepare the documents related to the property after considering all reasonably expected eventualities. The lawyers will prepare proper documentation defining the claims based on equity to make division an easy affair at the time of unfortunate events.