Pre-marital & inherited property is not Marital Property, Hence must not be Divided during Divorce.
Property acquired before marriage, property gifted to a person and inherited property is not Marital Property. The definition of marital property is the property for which both the spouses contributed during the fixed course of marriage. This Marital Property division law must not become a Gold Diggers law for urban women or men.
Indian family system is thousands of years old. It is important to hold wide consultations with people of India, different religious organisations and social organisations before enacting any law than can harm the family system in India.
Whenever any unfortunate incident of marital breakdown happens, it must be ensured that neither husband nor the wife must benefit at the expense of other. Neither the woman should get exploited, nor the law facilitate extortion of men by Gold Digger.
The laws of property division have to be fair to both spouses and they must not be extortionist to the spouse who works more or earns more. No spouse should gain at the expense of other spouse during a divorce.
A woman who spent 15 years with her husband to bring up children, took care of his home, took care of his elderly parents, must not find herself with no income and accommodation, when she sacrificed her career for the sake of the family and to bring up the children. She should certainly get half of the property acquired by husband during those 15 years of marriage as a matter of her right. At the same time, she should get an equal share of her parental property or the ancestral property of her own parents.
Now-a-days the families are getting smaller and hence if she has a brother or a sister, then she and her children should inherit half of the property of her parents and ancestors. Similarly, if she is the only child of her parents, then she and her children should inherit the entire ancestral property. That way, she will be secure.
However, if a woman did not take care of children, did not take care of the home, did not do a job, did not take care of elderly in-laws and spent time roaming around in kitty parties, does she deserve 50% of the property earned by the family, where the husband works 50 hours a week, takes care of children, feeds them, manages servants and manages house? It is certain that the responsibilities of a non-working home maker have to be clearly codified. Similarly, if in a 15 year marriage, if the wife did a job and took care of house, while her husband earned nothing and did not even do a job, does he deserve 50% of property created by the family, mostly paid by wife in this case?
The education and upbringing of the children of the divorcing couple is the responsibility of both the mother and the father. Once marital properties are shared equally, both parents should contribute equally to the upbringing and education of children.
Now, should a man get a right to ancestral property of his wife, i.e. the property that belongs to his wife’s parents? The simple answer is no. Similarly, should a wife get a right to ancestral property of the husband? It is again No. Should the children of the divorcing couple get a right to ancestral property of their mother and their father? Certainly it’s a big Yes.
So, where is the need for a big confusion and heated debates in TV news channels?
Say, a 35 year old man and a 27 year old woman marry. The woman’s grandfather wrote a 30 lakhs rupees worth of land property in her name when he passed away last year. So, the woman has a property of 30 lakhs, when she enters into the marriage. Now, both the wife and the husband work in a bank and earn almost same salaries. However in 6 months, due to differences and mutual compatibility problems the couple divorce to go for a mutually consented divorce. They had almost no savings in 6 months of marriage however the wife brought property worth of Rs.30 lakhs into the marriage. Should her property be divided and should her husband get 50% or Rs.15 lakhs worth of property from his wife after their marriage of 6 month’s broke down? Certainly, it is a big NO.
Similar, if the husband of 35 years had worked in USA for 10 years and returned to India and purchased a property worth Rs.40 lakhs. Then if the marriage between him and his wife, aged 27 breaks down in 6 months, should she get half of his property or 20 Lakhs? Just as above, the answer is No.
We are talking about equitable distribution of property between wife and husband during their divorce.
A typical scenario is most cases in India is, the wife and the husband marry and stay in a rented accommodation. What happens if they decide to separate and get divorced due to serious mutual incompatibility? Should one of them forcibly throw the other out and should the other spouse fight with the landlord? That’s absurd. The best way is to vacate the rented house and go to separated rented houses or hostels or paying guest accommodation to stay, just the way they used to do before marriage.
Now, let’s take the case where the husband, aged 35 has bought a house of Rs.60 lakhs just before 6 months of marriage taking a loan of Rs.40 lakhs from a bank and another gift of Rs.10 lakhs from his mother and he contributed remaining 10 lakhs from his own savings. He and his 32 year old wife work in a software company earning almost similar salaries. If after 2 years, they decide to divorce due to mutual incompatibility, then what happens to the house? Should the wife forcibly stay in the house and throw her husband out? Remember, he has paid 10 lakhs from his own pocket, his mother has paid another 10 lakhs and he is liable to pay back the loan of 40 lakhs he owes to the bank and he pays a monthly EMI of Rs.60,000 to the bank.
In fact, if we ask the Government of India and the Indian Judges, they will say, as per the Domestic Violence Act, 2005, the wife is allowed to forcibly occupy the house and the husband has to be thrown out of the house that he owns and whose loan he is liable to pay. These are thousands of such incidents in India in last 5-6 years, where the husbands are restrained from selling the house and he is ordered to get out of the house so that the wife can stay there. In the madness for respecting and protecting women, we may accept this for the time being. Now, let’s bring the scenario that the husband lost his job due to recession and now he is unable to pay the loan EMI of Rs.60,000 per month?
This shows how badly drafted and unjust the Indian Domestic Violence Act, 2005 is. They could have told the husband to keep the house or allow him to sell the house, if he is unable to pay EMIs and pay for the rent of the house to wife. And if husband and wife are earning similar salaries, then there is no reason a husband should even pay the rent to wife. She can afford it herself.
In India, there is a madness sweeping to empower women at any cost and there is a huge misplaced trust on the Government and Judiciary that in the land of Buddha and Ashoka, there will be justice when you put your case in front of a policeman or a judge. So, no one believes the plight of a man, who has lost his job and who is thrown out of his own house, for which he is paying monthly loan EMIs and his wife stays there in that house with her new fiancée.
The Marital Property must be divided between spouses during a divorce. However, when such a division happens, the DEFINITION of Marital Property is:
1. Property acquired during the marriage.
2. The property inherited by wife or husband is not marital property.
3. The property acquired before marriage is not marital property.
1. The loans taken to acquire property have to be deducted as they are liabilities.
2. The money given as gift by parents of wife or husband must be deducted as it is not earned during the marriage of the couple.
3. The money earned by wife or husband before marriage, but spent for acquiring the property after marriage also has to be deducted.
4. Past savings (before marriage) used to purchase the property has to be deducted.
5. Any loan taken by mortgaging the property has to be deducted.
That way, there will be equity and justice in appropriate division of marital property.
Under no circumstances the Marital Property divisions and its laws should get muddled by other issues like alimony and child support, which have to be dealt by the Family court separately.
If a couple have absolutely no Marital Property, then the default alimony, child support and shared parenting procedures will apply. The marital property division is an additional aspect and this has to be dealt in isolation.
The basis of dividing Marital Property is, both spouses contribute to family wealth during the marriage and it has to be divided equitably. So, the money earned by wife or husband, before marriage has to be kept aside. In fact, both partners must start a joint account as they marry and they separate their earnings from their marriage from the past savings.
If one is really concerned about women, then its important to realize that for women, there are provisions of Maintenance, Alimony in Indian Marriage Laws. For children, there are strict provisions of Child support laws. The division of Marital Property or property acquired during marriage is an additional issue. However, not every couple may have marital property. For example, the poor rural families never have any marital property as they are very poor to save anything and buy property.