• Joint property of divorce couple

Husband has bought a property and registered jointly with wife. It is on bank loan and husband is repaying the loan. They are planning to file mutually consented divorce. Wife is willing to transfer the property right to husband, but she is insisting that she will transfer the rights only after the divorce is granted. How can we make it legally binding that she transfers it after divorce.
Asked 3 years ago in Property Law
Religion: Hindu

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9 Answers

Ask wife to execute gift deed on day case is kept on board for second motion in the divorce  petition 

 

once divorce decree is passed ex wife may refuse to execute gift deed for her share in property 

Ajay Sethi
Advocate, Mumbai
99796 Answers
8147 Consultations

Draft a conditional transfer deed and get it registered. It is matter of proper drafting. The prime cluse should be roughly like this, “It is agreed between parties that, the transfer of scheduled property will take effect decree of divorce on mutual consent becomes final.” This way you can ensure that she does not go back on her word. Such agreement is known as contingent contract.

Ravi Shinde
Advocate, Hyderabad
5133 Answers
42 Consultations

Let husband and wife, before filing Joint application for Mutual Consent Divorce, enter into MOU and mention that the wife would transfer her share of the property to husband after divorce is granted.  In the MOU, the sharing of property, custody of children, alimony, if any, etc. can all be mentioned.

Shashidhar S. Sastry
Advocate, Bangalore
5624 Answers
339 Consultations

You can enter into a MOU in this regard and make it as a part of the divorce decree.

Once the MOU with the mutually agreed condition becomes part of the divorce decree, she cannot refuse to do so or comply with the conditions.

You can file an execution petition or even a contempt of court case agaisnt her for disobeying court orders. 

T Kalaiselvan
Advocate, Vellore
89998 Answers
2496 Consultations

You can include the same in consent terms of mutual divorce. 

Prashant Nayak
Advocate, Mumbai
34529 Answers
249 Consultations

Hello,

  1. The wife's agreement to transfer must be documented as part of the Consent Terms being filed with the Mutual Consent petition.
  2. There must be a prayer to order the Consent Term as part of the Order of the court.
  3. There must be a time limit set for the transfer in the consent terms.
  4. Please know that if transfer by a Gift Deed is done after the divorce is decreed, the stamp duty will be far greater.

S J Mathew
Advocate, Mumbai
3619 Answers
175 Consultations

Deo client I am sorry to hear that but in this case is the property is in the name of both the partners hence after the divorce the property will get distributed among them equally or based on the share they have. However if in case your wife willing to transfer the right to you then see my do it but if you think so will not do it poster was you may get into an agreement for the same. 

Anik Miu
Advocate, Bangalore
11018 Answers
125 Consultations

- Since, that property is in joint name , then legally wife having equal right over the said property even husband is  paying the bank loan.

- Wife can execute gift deed in favour of husband for making him single owner of the property. 

- If she is ready for mutual divorce, then the husband should enter into an agreement with her after mentioning the said transfer of the  property , and submit the same with the joint petition of divorce before the court. 

- Further, before the second motion of mutual divorce , the husband can force the wife to execute gift deed in favor of him . 

Mohammed Shahzad
Advocate, Delhi
15816 Answers
242 Consultations

It is better to pray for a court order directing the wife to transfer the property immediately upon the court granting the divorce, as it is a divorce by mutual consent. In case of any delay or default, the court order can be executed under EP.

Swaminathan Neelakantan
Advocate, Coimbatore
3070 Answers
20 Consultations

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