A step closer to 50:50 in divorce3 min read . Updated: 03 Apr 2012, 09:48 PM IST
A step closer to 50:50 in divorce
A step closer to 50:50 in divorce
How much do you think you will walk away with if you get a divorce?" I’ve asked this question to many women and the answer has always been a naïve “half." On 23 March, the cabinet cleared the Marriage Laws (Amendment) Bill, 2010, and if Parliament passes it, married women in India will be closer to a fairer deal in marital property in a divorce. The Bill amends the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, and says that the woman should get a share of all matrimonial property.
Boring? Well, maybe. But boring things, like healthy food, though unpalatable, need attention. Did you know that marriages in India are governed by the Act under which two people get married? These details don’t really matter till the time that they do—if you divorce or if a man dies intestate (man believes he won’t die and omits to write a will). The amendment seeks to make the marriage laws more contemporary and give women better marital rights if the marriage breaks up. The Marriage Act (Hindu, Muslim, Christian) under which you marry will determine the details of the divorce settlement. However, if you register your marriage under the Special Marriages Act (SMA), it will supersede any personal law. One big gap in the Indian law has been the lack of community of marital property. Community of marital property is when the assets (real estate, gold, financial assets, retirement funds) built by either spouse during the course of a marriage belong to both of them; this excludes inheritance and gifts. In India, the lack of this community of property means that any assets acquired during the course of marriage belong to the person in whose name they’re bought. And who buys most assets in an Indian marriage?
Though the current amendment is a step forward, we’ve stopped short of biting the equal-share bullet that recognizes the fact that women pull equally hard (women pull more, I’d say, but then I’m biased towards my own gender) in a marriage. The draft Bill says that the woman should get a share of all matrimonial property but the relevant court should decide how much in each instance. The judge will decide how much of the marital property she should get. We need to move to an equal-share legislation and till that happens, here are three things for the judges to remember: One, a business family has ways of moving assets out of the reach of the woman and loading the divorcing man with liabilities. Two, marriages where the joint family supports the husband—who does not earn—may need special attention in dealing with the claim of the woman. Three, in contemporary urban marriages, there are at least one or two loans alive at any point in time. The division of assets must take account of the loans pending at the time of divorce to give the man a fair deal.
Till the law recognizes the financial equality of a marriage, you, as a married woman, need to be careful. If you’ve taken the admirable step of chucking up a brilliant career after an accolade-filled study for 15 years of your life to look after the kids, do one more thing: ensure that the assets being built by the earning spouse are in joint names. And that you get a monthly income from which you can create your own retirement kitty. If you work outside the house and are paid for it, create assets in your name from your own income and keep an eye on your provident fund account as your future nest egg. In the unfortunate case of being dependent on a joint family-run business, get a good lawyer. Assets are transferred away from the divorcing husband faster than you can say bye dude.
Monika Halan works in the area of financial literacy and financial intermediation policy and is a certified financial planner. She is editor, Mint Money, and Yale World Fellow 2011. She can be reached at email@example.com
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