How is Property Divided between husband and wife after Divorce in India?

In a situation where a marriage ends in divorce, the most important questions that arise in everyone’s mind are, how will the property be divided between the husband and wife? Will the wife be given 50% of the husband’s assets? This is a huge legal, emotional, and financial issue in the lives of both the husband and wife who are undergoing a divorce.

If we talk about the Indian legal landscape, there is no law that automatically gives a half share in the husband’s property to the wife. The truth is that the division of property depends on various factors, like who is the legal owner of the property. Whether the property was bought jointly or individually? Whether the wife made any financial or non-financial contributions or not? Etc.

In this article, we’ll try to understand and answer the above-mentioned questions, beginning with explaining the situation in the case of ownership.

“Community Property” System:

This system is prevalent in countries like the US. What this means is that all the property that is acquired during the course of marriage is considered to belong to both spouses equally.

In the case of India, such a concept doesn’t exist. In India, each person has the ownership of whatever property or asset is in their name until and unless that property is “jointly owned” or there is evidence of “shared contribution.” Simply stated, if the wife can prove that she had contributed money or effort towards a property acquired during the course of their marriage, then she can have her claim over it.

Types of Properties in a Marriage:

• Self-Acquired Property:

  This is the property that is brought by either of the spouses in their own name using their own money. In the Indian legal scenario, in such a property, the other spouse doesn’t have an automatic legal claim over the property, even if they have been married for years.

• Jointly Owned Property:

  This is the property that is registered in the name of both the husband and the wife. In this scenario, each person is considered a co-owner. They both will have their share based on how much each of them invested in the property. For example, if they invested equal amounts, then both of them will get a 50-50 share in the property.

• Inherited Property:

  Such a property is inherited by the husband or the wife from their family, and it’s regarded as their personal asset, and thus, the spouse has no claim over it until and unless it is later converted into a jointly owned asset.

• Streedhan:

  This includes all the gifts, clothes, jewelry, cash, etc. that are given to the wife during the marriage ceremonies or are given to her by her own family. In either case, this is considered her own legal property, and the same must be returned to her after her divorce.

What does the law in India say?

There is no single law in India that explicitly states how a property should be divided after a divorce. Instead, different laws apply depending on the couple’s religion and their type of marriage as well. In the case of Hindu, Muslim, Christian, and civil marriages, all have different personal laws that state how property is divided after divorce.

Joint property, for instance, is sometimes divided by the court based on who paid for it and how it’s owned. In case of maintenance, i.e., what is commonly referred to as monthly financial support, it can be given to the wife who cannot support herself, regardless of religion. This is provided under general laws like the BNSS. Streedhan, as discussed earlier, always remains a part of her personal property.

Apart from that, under the provisions of the Domestic Violence Act, a wife has the right to live in the shared house, even if it’s in the name of the husband. But, as the line states, this is the legal right to stay in the property and not to own the property.

In short, the Indian legal landscape focuses on fair financial support rather than equal division of property. The ultimate outcome, thus, depends on the couple’s financial situation, on how the property was acquired, and on what the court considers fair based on the principles of justice.

What Exactly Can a Wife Claim after Divorce?

• Alimony/Maintenance:

  An amount in the form of maintenance can be claimed under the Hindu Marriage Act, Divorce Act, Special Marriage Act, or the BNSS. This amount depends on many factors, such as the income of the husband, the needs of the wife, their lifestyle, and the duration of the marriage, etc.

•  Residence Rights (Not Ownership):

  The wife can stay in the shared household under the Divorce Act. In fact, this is sometimes granted even if it’s the house of the husband or the in-laws. And this setup is temporary in nature and not any sort of permanent ownership.

• Right in the Joint Property:

  Again, if the property is registered in the name of both spouses, then the wife is legally the co-owner. And in situations where she has contributed financially or indirectly—now, what does this indirect contribution even mean?—in simple language, this type of contribution means that if a wife, working in the management of a house or simply doing the necessary work to make it a pleasant place to live, goes through a divorce, the courts may award her a share in the property.

• Right to Streedhan:

  Simply stated, as streedhan is regarded as her personal property, the same must be returned to her. It includes gifts from her family or in-laws.

• Interim Maintenance:

  This refers to the temporary financial support that the wife can ask for when the case is still going on. This is usually given in situations where the wife doesn’t have income or cannot support herself during the case; then the court can direct the husband to pay her money every month so that she is able to manage her daily expenses, such as food, rent, legal costs, etc.

What do the courts consider while dividing the property?

• Financial contribution of all (EMI, purchase, maintenance)

• Non-financial contributions (work done in raising children, managing the home)

• Duration of the marriage

• Whether the wife is financially independent or not

• Custody of children

• Existence of any agreement or prenup

• Needs and welfare of both spouses

• Even the conduct of parties is also considered (e.g., if one hid income, was abusive, etc.).

To conclude, we can say that, in India, the wife doesn’t automatically get 50% of her husband’s property after divorce. The law doesn’t fix any percentage for the division of property in situations like these. Instead, each case is decided on facts as mentioned above. Overall, the wife can mainly claim what’s legally entitled to her. And in case of debts, just like the profits, both spouses are responsible for repaying them. For example, in cases of home loans. So, in all, the final decision will always depend on a case-by-case basis and can be settled through mutual understandings or through court orders. Thus, there isn’t any law that explicitly guarantees an equal 50-50 split.