[1]Divorce is a bad situation to be in! Life isn’t always fair and sometimes, it may so happen that one needs to break away from a bond made for life.
Overwhelmed by the emotional aspect of such a situation, one should not lose sight of the important question of financial security for the future, especially in a single income household.
Marriage is a partnership of equality but divorce may not be so anymore. The new provisions in the marriage and divorce laws tend to favour the wife over the husband when it comes to division of property.
The government in order to provide relief to women had introduced a Bill called the Marriage Laws (Amendment) Bill, 2010, which has been cleared by the Union Cabinet earlier this year bringing into effect many safeguards for women facing divorce.
This bill aims to provide the wife with adequate financial means to sustain her life even after the annulment of the marriage.
No waiting period
As per the earlier provisions in the divorce laws in India, there was a stipulated cooling off period of six months for which the husband and wife had to stay together before the divorce was granted.
This sometimes worked against the woman invol-ved as the husband might actually not provide for her needs during this period since technically the divorce was not in effect.
The new Bill provides for the “irretrievable breakdown of marriage” as a new ground for applying for divorce, in which this period of six months for a possible reconciliation is not necessary.
Thus the wife can now apply for the division of property immediately after the decision to part ways has been taken by both the parties, who are free to approach the court straightaway.
Wife gets 50% of residential property
This was one of the most debated clauses in the new Bill, which aims to help out women after divorce through financial safeguards.
As per the new regulation, the wife will have 50 per cent rights over all residential properties that are in the name of the husband at the time of the divorce being granted.
The 50 per cent right to property of the wife extends to all properties acquired by the husband before or after the marriage.
This is a new addition to the division of property after divorce regulations; earlier, the division was only applicable on the property acquired by husband after the marriage.
The new marriage Bill, however, stipulates that the division of property will be done only if the wife approaches the court for the same and not without any specific appeal from her.
Three-fourth share in joint property
Today many couples opt for joint registration of the residential property that they acquire after marriage. This is primarily done keeping in view the joint financial contribution, home loan and tax considerations.
However if the couple decides to seek divorce subsequent to buying a jointly registered property, the husband stands to lose a lot.
The wife shall get the first 50 per cent of the property, which is in her name and also half of the husband's 50 per cent in the property which adds up to 75 per cent of the entire property leaving a meagre 25 per cent or one fourth for the husband.
This particular clause has been viewed by many as purely pro-women and anti-men in its implications.
Rights of wife in other properties
Apart from the major share that the wife gets in the husband’s residential properties, she will also have a right to other properties owned by the husband.
However, the exact percentage of her share in such properties will have to be decided by the court as per each specific case.
The guiding factor in deciding the share of the wife in all other properties remains the “living standard of the wife”, which is left to the courts to decide.
Wife’s right to claim alimony
The statutes that cover the decision regarding payment of maintenance support to the financially weaker spouse (can be wife or the husband) in case of a divorce in India are the Hindu Marriage Act, the Special Marriage Act, the Parsi Marriage Act, and the Indian Divorce Act.
However in this case, the wife gets alimony only if she has no or lesser earning as compared to the husband.
This is also applicable for the husband, who too can be awarded a maintenance amount in case his proven sources of income are minimal and less than that of the wife.
Section 25 of the Indian Divorce Act categorically stipulates that such maintenance is provided to the wife irrespective of the ground of divorce as long as the financial need is proven in the court.
The amount of alimony that the wife is considered for is dependent on a number of factors:
* The duration of the marriage before the divorce is vital for alimony. If the duration has been more than 10 years, the court can award a lifelong alimony for the wife.
* The age of the wife at the time of divorce can be yet another important consideration in deciding the quantum of the alimony. The younger women will get alimony for a shorter duration.
* The difference between the earnings of the husband and the wife would also play a crucial role. The greater the difference higher will be the alimony awarded to the wife.
* The wife will get a higher alimony in case she is suffering from physical disability or prolonged disease.
The detailed calculation of the amount of alimony that a wife will receive depends on the different personal laws applicable for the couple.
However in any case the wife now has a better chance of securing her financial future in case of a divorce.
Adhil Shetty is CEO, Bankbazaar.com
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