Asked June 22, 2016

Status of property after Divorce

  • 1 Answer

We are looking for a mutual consent divorce due to marriage turned sour. Would like to know what are points we need have consent on? Other than the points for consent: We have a girl child of age 4 (present age). We have a flat in name of both of us for which I pay out the EMIs, no contribution from my wife's side and the loan repayment is pending for 15 years still. Would the divorce order help in getting the registry of flat changed to my name only or I need something from my wife?

Answer 1

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Arushi Malik

In case of a Divorce by Mutual Consent both the parties (i.e. you and your wife) need to file a petition together for dissolution of marriage by decree of divorce in the district court on the ground that you have been living separately for a period of one year or more and since then have not been able to live together and have mutually agreed that the marriage should be dissolved.[1]

After you have file the petition the court shall hear both the parties and after being satisfied and after conducting an inquiry as to the contents of petition being true shall pass a decree of divorce. This decree shall not be passed before 6 months of your date of petition and not later than 18 months of your date of petition.[2]

The question of living separately does not refer to the place of living; it just means that you both are not living as husband and wife. Even if you are living under the same roof but not living as husband and wife and have no desire to perform the marital obligations then also it will be considered as not living together.[3]

As regards the custody of your child, I suggest that you should decide that as well amicably amongst yourselves otherwise both of you will have to fight a legal battle for it. And as regards the change in the name of registry of flat, it will not happen directly just by getting a decree of divorce. Since, both of you are joint owners of the property currently, you will have to get it transferred just in your name. But you must ensure that you decide this issue also amicably with your wife otherwise it will again result into a legal battle between both of you over property issues.


[1] Sec 13B(1) of The Hindu Marriage Act, 1955

[2] Sec 13B(2) of The Hindu Marriage Act, 1955

[3][3] Sureshta Devi v Om Prakash AIR 1992 SC 1904

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