You will lose all this if you divorce your wife - Brace up for repercussions (2024)

Shaveta Dua

,ET Online|

Jul 08, 2022, 11:37:32 AM IST

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Brace up for repercussions

Bad marriages can be emotionally draining. When you are finding it difficult to hold your marriage together and contemplating a formal separation, you need to be mindful of not only the emotional stress but also the financial implications. So, before you firm up any plan, here are financial aspects you need to consider before going your separate ways.

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Interim maintenance and alimony

The financially vulnerable spouse has the right to seek financial support from the higher earning spouse. In a majority of the cases, it is the wife who receives this support if she has insufficient or no independent income to support herself and the expenses of the proceedings, the court may order the husband to pay the expenses of the proceeding and also a monthly allowance during the course of the proceeding.

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Monetary support for spouse

There are two types of monetary support which the higher earning spouse usually has to give to the other one -- interim maintenance under which the amount is given during the pendency of court proceedings and the second is the permanent alimony, which is given at the time of the passing of the final decree. "Sections 24 and 25 of the Hindu Marriage Act provides for interim and permanent alimony," says Supreme Court lawyer Preeti Singh. To claim alimony, the wife needs to submit not only evidence of her income and assets before the court but also evidence of monthly expenses and which she ought to make in order to maintain the same standard of living which she would have enjoyed had she been at her matrimonial place.

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Type of divorce and alimony

In case of mutual consent divorce, both spouses decide the maintenance and alimony together. However, in contested matters, the court intervenes and decides the issue of alimony or maintenance on the merits of each case. There is no fixed formula as different courts have adjudicated differently, keeping in mind the unique circ*mstances of the case at hand. While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude and one set formula cannot be applied in all cases blindly.

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Concealing income and wealth

The real fight begins after documents (including income and asset details) are submitted in the court to decide on alimony for the estranged wife. The case of corporate or government employees is usually transparent, but the problem emerges with businessmen who show themselves as paupers even if their family holding is in Fortune 500 companies. As a result of this, many courts cannot even fathom the standard of living. The income and assets are camouflaged in companies and subsidiaries and corporate credit cards.

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Onus on spouse to prove charge

If a spouse hides his/her income, the onus would be on the affected party to prove it, by way of tax returns or property papers etc. Unless the affected party proves, a fair compensation remains elusive.

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Execution of order a concern for spouse

Another major drawback of permanent alimony or one-time settlement is the execution of such orders. Mostly orders of maintenance and alimony end up in filing contempt petitions by the aggrieved wives. "Enforcement of orders of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislations. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law," adds Luthra.

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How child's custody affects settlement

Maintenance can also be claimed by minor children, physically or mentally challenged adult children, adult unmarried daughters, and by the mother or father of a spouse who are unable to maintain themselves. In case the custody of the child is with the wife, the child's expense must be included in the alimony.

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Interpretation of law holds the key

Courts have approached section 27 of the Hindu Marriage Act, 1955 through different perspectives. It has been reasoned that any relief under section 27 is subject to the discretion of the court. The law provides an intriguing avenue for relief to a wife in addition to alimony. The section states: "In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife."

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Autonomy of courts

This means that based on the facts and circ*mstances of the case, the court has the power to decide on the distribution of assets held by both man and wife, including streedhan, joint property and other possessions which the couple had possessed before and during their matrimonial journey.

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Right to residence a landmark verdict

A woman can claim 'right to reside' in her matrimonial home under the Protection of Women from Domestic Violence Act, 2005. Further, even right of residence has been recently adjudicated by the top court in Satish Ahuja versus Sneha Ahuja wherein it was held that right to residence is paramount for a wife, irrespective of whether she is working or not. It has repeatedly been held by various courts that one cannot ignore the fact that an Indian woman has been given an equal status under Articles 14 and 16 of the Constitution and she has a right to live with dignity and according to the status of her husband.

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