• How to save my property in a divorce

Hi,

I have filed a divorce and my query is regarding the apartment which is owned by both my wife and me. However, all the down payment, Yearly Tax and Monthly LIC home EMI is paid by me. I have all the bank statements which signifies the same. Post marriage, out of love i added my wife's name to the property which i bought. The property is still on EMI and it is for 25 years. So, far i have been paying for last 2 years. My wife has taken all her jewellery and now she is not appearing in the court. When i ask her to execute a release deed she denied. So below are my questions:

1) Should i stop my EMI & get the house to auction? because anywazs my wife post divorce will get 50% of the property?
2) As the house is on EMI, what will be the outcome in case of divorce?
3) Can i re-purchase the house, once the house in action in Bangalore?
Asked 2 years ago in Family Law from United Kingdom
Religion: Hindu
1) since you have added your wife name she is 50%owner of the property . she can claim right to stay in matrimonial home . 

2) if you stop paying bank installments property would be auctioned for recovery of dues . 

3) your wife will in case of your failure to pay installments make application to family court to direct you to pay installments of loan 

3) post divorce she continues to remain 50%owner of property . 

4) wait for your divorce before purchase of any other property .
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
Dear Querist
as per my opinion, stop the EMI's Immediately, the Financial Institute/Bank may took the possession of the flat and auction the same then talk to her about mutual settlement, if she agree then ok otherwise fight the case on merit.

till the final disposal of the divorce case it will be better, not to purchase any property in your name.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Though you are making all the financial contributions for the house you wife is its half owner beaucse of her name added in the titile deed.
Stopping of EMI and getting it auctioned would be agood but you will have to bear great finacial loss.
2. Your wife shal have right of residence in the house.
3. Yes if it is vaialble for sale by that time but the consequneces will remain same.
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
4.9 on 5.0
1. You have not mentioned whether you have mortgaged the said house while availing loan for purchasing it or not,

2. As of now, she is the joint owner of the house, pre as well as post divorce,

3. It is not correct that wife will get 50% of the property after divorce. She will get no share of your property. She will get 50% share of the flat since she is its co-owner and she can claim its 50% share even before divorce,

4. If you stop paying EMI, your loan account will become NPA and the Bank will intiate SARFAESI Proceeding to recover the outstanding dues by selling off the said flat which you can buy. Better buy it in some other's name to avoid further litigation,

5. Outcome of Divorce in connection with her alimony will depend on her claim for alimony and the decision of the Court,

6. Contest the case fittingly.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under

) Assuming I stop the EMI and the house went for auction, will my wife be entitled for 50% share on the money which be generated through auction( post Bank deduct its share)?
Opinion : yes she will be entitled to get 50% of the amount. 


2) What all action my wife can take, in case i stop my monthly EMI?
Opinion : she may filed a domestic violence case against you before magistrate under section 12 of domestic violence act

3) Since my wife is working, will she be entitled to maintenance or any alimony?
Opinion : no if you proved that she is able to maintain herself. 

4) If I continue managing the EMI and get the divorce. can the court or my wife force me to sell the property and give her the share?
Opinion : not forced but the court may pass an order to pay the amount or she will sell her share.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1. The sale proceeds will come to hands of the owner only if something is left after meeting the loan amount. I doubt anything substantial will be left to be distributed between two.
2.Nothing.
3. No unless there is sea-gap between your respective incomes.
4. Yes
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
4.9 on 5.0
1)if after sale of property any amount is received by the flat owners your wife will be entitled to receive 50%of the amount 

2)your wife can make application to direct you to pay EMI of the flat as it is her matrimonial home .

3)if your wife is working she wont get any maintenance unless there is substantail differnce in your icnomes 

4)your wife can file suit for partition for her share of property
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
1. The excess amount after recovering the outstanding of the Bank will be refunded to the Borrower,

2. Since, your wife is co-sharer of the property, she can sue you claiming 50% of the amount refunded by the Bank to you as the borrower,

3. She can pay of your dues and take the Title deed of the property wherein you have 50% share. It is highly unexpected that she will do that,

4. She is not entitled to any maintenance. She can claim alimony in Divorce Suit,

5. No. Court can not pass such order. You can file a declaratory suit before civil Court praying for declaration that you are the sole title holder of the property for which you have made and are making all the payments for which the name of your wife as co-title holder, which was inserted by you for love and affection, be deleted and your name as sole title holder of the property is registered due to your ensuing divorce proceeding.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
1. Your wife being the joint owner can exercise ownership rights in 50% of the property. She can claim the right to stay in the property even though her portion in the house has not been clearly demarcated.

2. If you stop paying EMIs the bank will proceed to auction the whole property. However, your wife may apply to the court for a stay order against the auction, which may be granted.

3. If you have filed for divorce and your wife is contesting the same then the judgment in divorce case will be silent on the rights to the apartment which is owned jointly by you and your wife. As the joint owner your wife can indubitably file a lawsuit to cull out her share in the property and also seek a stay order against the house being auctioned by bank.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1. In the event of auction the bank will remit the balance proceeds to you and your wife after applying the auction proceeds towards the loan due to it,

2. As mentioned earlier, your wife can obtain a stay order from the court if the bank consequent on default in EMIs by you proceeds to auction the property. 

3. A working wife is not entitled to any maintenance.

4. The court cannot force you to sell the property, albeit your wife may sell her share at any time. In order to claim absolute ownership of the property you can file a lawsuit to seek a judicial declaration to the effect that you the absolute owner of the property as the purchase price thereof was paid entirely by you without any contribution being made by your wife, and that subsequent to marriage you had out of love and affection included her name in the sale deed as a joint owner.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
i f you wish to stop the EMI do that. In case of  any amount coming out of that give her 50%, and this will be a record that you have shared with her and she cannot claim further.
Your wife is working so even if she files a domestic violence case and ask maintenance not easy to get it, you can defend .
In case she pays and get the documents in her custody, you can file a civil suit, your share in the property shall remain untouched.
As of now no law forces you to pay 50% right of  what is your personal property or ancestral one.
Your wife can claim the right in the property as a co-owner as the same time you can show the proof that she has not invested in it.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1) Should i stop my EMI & get the house to auction? because anywazs my wife post divorce will get 50% of the property?
Ans:It is not necessarily followed always by court. And,you have a point to get an order from the competent court for declaration on the property stating that you are the real owner of the same due to the reasons that you have funded it.   
2) As the house is on EMI, what will be the outcome in case of divorce?
Ans:The first charge would be of that bank which lent you the loan.So,it is not possible to transfer the property or own it without clearing the dues of the lender bank. 
3) Can i re-purchase the house, once the house in action in Bangalore?
Ans:Yes.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0

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