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THE PAIN OF BEING CAUGHT UP IN PROPERTY-DIVORCE LEGAL BATTLE
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Advocate Pratibha Bangera, practicing lawyer at Family Court, stresses
upon the importance of property dispute settlement to speed up divorce
Q. How are property
disputes resolved in divorce matters?
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.
Q. 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.
Q. 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.
Q. 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.
Q. What happens to the
rights of children after divorce between parents?
The right of a child to
inherit parents property has nothing to do with divorce. A child's right of
inheritance is independent of the legal custody.
Q. 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 childs 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 .
Q. How can a property
dispute delay divorce?
Property and maintenance
are the main areas which involves money and if these two issues are not
amicable 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
Q. 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 .
Q. 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 theyvare
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.
Q. 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.
Q. 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.
Q. Does the family court
or criminal Court have right to 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 .
Q. 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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