Asset split in divorce: Courts presume equal ownership of joint assets

They increasingly recognise the wife's non-monetary contributions such as homemaking and childcare when dividing assets

In a recent case, the Delhi High Court held that a husband cannot, at the time of divorce, claim exclusive ownership of a property jointly held with his wife merely because he had paid for it. The case involved a couple where the husband was the sole earner. Both the Mahila Court and the family court had directed him to pay Rs 2 lakh a month as maintenance — a decision upheld by the High Court.

 

Property division 

When property is in one spouse’s name: In India, the division of assets after divorce depends on ownership and contribution under personal and civil laws. The Hindu Marriage Act, 1955 (HMA), follows a separate-property regime. “Each spouse, after divorce, retains ownership of assets acquired in their name, and there is no statutory mechanism for equal division of assets post-separation,” says Mayank Arora, partner, Chambers of Bharat Chugh. 

“Self-acquired property belongs to the person in whose name it stands or who financed it, unless the other spouse proves financial or indirect contribution, such as homemaking or managing the household,” says Soumen Mohanty, partner, Aquilaw.

 

When property is jointly held: For jointly held assets acquired during marriage, courts presume equal ownership regardless of who paid the purchase price. “Joint registration implies equal ownership unless proven otherwise for assets acquired during marriage. The Prohibition of Benami Property Transactions Act prevents a husband from claiming that his wife’s name was added merely for loan purposes, as this would constitute a benami transaction,” says Arora.

 

Courts are increasingly recognising the wife’s non-monetary contributions such as homemaking and childcare. “Although some high courts have differed, the overall trend leans towards treating jointly held property as equally owned, even if one spouse alone pays the EMIs,” adds Arora.

 

Provision of alternate accommodation 

A wife cannot be evicted from the ancestral or matrimonial home, even if it is in the husband’s name, without suitable alternate accommodation or maintenance. “This protection arises from judicial interpretations under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 of the Code of Criminal Procedure), the Domestic Violence Act, 2005, and Article 21 of the Constitution,” says Mohanty.

 

A spouse has no coparcenary rights in the other’s ancestral property.

 

How maintenance is decided 

Maintenance of wife and children is governed by Sections 24 and 25 of the Hindu Marriage Act, Section 20 of the Hindu Adoptions and Maintenance Act, Section 125 of the Code of Criminal Procedure, and the Domestic Violence Act. “Courts assess factors such as financial status, marital lifestyle, wife’s income, her employment sacrifices, and the husband’s capacity to pay,” says Arora.

 

In Rajnesh v. Neha (2020), the Supreme Court held that maintenance should prevent destitution and ensure a lifestyle comparable to the marital home.

 

When the wife earns: A wife’s earnings do not automatically disqualify her from maintenance. Courts assess whether her income suffices for a lifestyle akin to that which she enjoyed in her marital home, especially if she is also supporting children or other dependants. “Maintenance amounts are adjusted based on the wife’s earnings but may still be awarded if her income is significantly lower than the husband’s,” says Arora.

 

Mohanty adds that when the wife is gainfully employed and financially independent, the quantum of maintenance is decided depending upon the financial condition of the husband and wife, respectively.

 

A wife cannot claim ownership of the husband’s assets. “However, alimony may be directed from his assets to ensure fair support,” says Nidhi Singh, partner, IndiaLaw LLP. Singh adds that the wife must establish that she cannot sustain the marital lifestyle from her own income and that the husband’s independent assets would be necessary to support her.

 

When the wife earns more: A wife may not be entitled to maintenance if she earns more than her husband. However, courts have awarded it in cases where the husband has substantial income or assets.

 

The duration of marriage also has a bearing on the court’s decision. “Longer marriages often indicate greater non-financial contributions by a non-earning spouse,” says Singh.

 

Know your rights 

Lawyers advise couples to approach asset division with clarity on their legal rights and focus on equitable outcomes that ensure dignity for both. “Maintaining records of ownership, contributions, and joint assets can help avoid disputes. The law encourages amicable settlements through mediation,” says Singh. She adds that when both spouses are financially independent, acquiring property individually can simplify separation and reduce ownership conflicts.

 

Stridhan: Woman’s exclusive property

 

• Stridhan is a woman’s absolute property
• Withholding or misappropriating stridhan constitutes criminal breach of trust
• Refusal to return it can attract criminal liability
• A woman can seek its recovery through court proceedings
• Right over stridhan remains unaffected by divorce or separation

The writer is a Delhi-based independent journalist