Thursday, October 22, 2020
Home Interview The pain of being caught up in property-divorce legal battle

The pain of being caught up in property-divorce legal battle

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property-divorce legal battleAdvocate Pratibha Bangera, practicing lawyer at Family Court, stresses upon the importance of property dispute settlement to speed up divorce with our Editor-in-Chief Dr Vaidehi Taman

How are property disputes resolved in divorce matters?  

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The concept of “Marital home” protects wife and children from being dishoused provided the wife and children have been continuously staying in that house for at least six months.

The wife can make an application before the concerned family court for permission to continue to reside as well as apply for a Stay or injunction against the husband from creating third party rights in the “marital house” or from selling it or transferring it to any other person’s name.

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What is the right of a wife in her husband’s property and in the property belonging to her in laws?  

In several judgement it has been upheld that, a “marital house” of the wife is the same where the husband resides. A wife can get specific reliefs to continue staying at her marital house along with her children even if the house is registered in husband’s single name and he has inherited or acquired the property.

However there cannot be specific reliefs which wife can seek on house and properties which are self acquired by her in laws with their own money.

It is due to this reason that most husbands transfer their property to parents or siblings by way of gift or release deed to defeat the claim of wife in such properties.

However if the wife has been continuously residing at the same house, it is considered as her “marital home” and the wife can make applications to court for non interference with her stay in such homes.

Does a husband also have similar right on the wife’s property?

If a husband has contributed to a property which is registered in the single name of the wife or in joint names, he may have to show proof of such payments made by him towards purchase or transfer of such property to the extent that he has paid and ask for refund or adjustment of such amounts with maintenance amount or alimony sought by wife if wife wants him to vacate or leave or relinquish his rights. And if he has been residing in wife’s self-acquired home, it is his “marital house” as well.

What is ancestral property, does a wife or husband have a right to ancestral property of other spouse?  

Yes, both spouses have right to ancestral property “inherited” upto extent of their share as per their “Personal law” and as per provisions of succession Act and it is not a subject matter of family court but it will attract other civil case.

What happens to the rights of children after divorce between parents? 

The right of a child to inherit parent’s property has nothing to do with divorce. A child’s right of inheritance is independent of the legal custody.

If custody of the child is with the mother after divorce can the child inherit right to father’s property?

Yes a child of such parent can inherit even if he has attained age of majority. However if the father remarries and has further children, share if child’s right in such property will reduce.

In such cases the surviving stepmother, her children will also be in the line of heirs simultaneously. i.e if the child’s father has not already made a will or distributed his assets before his death between his new family members .

How can a property dispute delay divorce?

Property and maintenance are the main areas which involve money and if these two issues are not amicably resolved between husband and wife, the litigation can continue for a longer duration and both parties are forced to suffer repurcussions resulting out of contested divorce

What if the husband and wife own property in joint names?

If a property dispute cannot be resolved between the husband and wife themselves, the court may direct parties to apply for division of property before appropriate court or grant reliefs or Order of Stay or injunction  to secure the wife and children .

What is the right of a surviving spouse when one party dies during pendency of  divorce?

If one party dies during pendency of divorce, the other spouse will inherit property as if they are still legally wedded. A person will be treated as married till a “divorce and decree” is finally granted by Court. Also right of a widow will survive to ancestral property.

Is there a specific law as to manner of division of property during divorce?  

Every personal law has defined rights, but we do not have uniform law. In some personal law right of a wife to husband’s property ends with divorce as marriage is contractual  eg  Muslim personal law.

What is the “residence order” given to a wife?

Under the protection of women from Domestic Violence Act 2005, if the victim of violence makes application for residence order, the court may direct husband to stay away from the house where the wife and children reside or ask the husband to make arrangements for an alternate accommodation for the wife and children.

Does the family court or criminal Court have right to order sale of a property?  

Property partition or sale are matters of civil court and a family court or criminal court does not interfere with “title rights” of property .

How can a wife whose name is in a joint marital property affect a wife, if the husband is paying for EMI of home loan?

Any loan outstanding in the name of husband or wife will reflect in the CIBIL score of husband as well as wife. There are cases where husband stops maintenance and takes top up loan without wife’s knowledge and thereby causing deep prejudice to wife’s right to take personal or property loan for herself.

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Dr. Vaidehi Taman
Dr. Vaidehi Tamanhttp://www.vaidehisachin.com
Dr. Vaidehi Taman is an Investigative Journalist, Editor, Ethical Hacker, Philanthropist, and an Author. She is Editor-in-Chief of Newsmakers Broadcasting and Communications Pvt. Ltd. Since 11 years, which features an English daily tabloid – Afternoon Voice, a Marathi web portal – Mumbai Manoos, monthly magazines like Hackers5, Beyond the news (international) and Maritime Bridges. She is also an EC Council Certified Ethical Hacker, Certified Security Analyst and is also a Licensed Penetration Tester which she caters for her sister-concern Kaizen-India Infosec Solutions Pvt. Ltd.

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