Women’s Right’s improve under potential changes to Indian family law

by Peter Magee on June 5, 2014

Peter Magee

In India.com news Amrita Nayak Dutta reported on 2 October 2013 in an article titled “Women put off divorce to benefit from Marriages Law (Amendment) Bill” that the Marriages Law Amendment Bill proposal in India has seen a 23% decline in divorce cases as women “direct their lawyers to go slow on proceedings”.

Dutta goes on to say:

“Women are playing the waiting game when it comes to getting divorced. Between January and August in 2013 divorce cases in Mumbai fell by 23% compared to the corresponding period the year before.”

The Bill proposes that a wife should receive 50% of the husband’s inheritances and properties.

Although the Bill has now passed the Rajaya Sabaha (first house of parliament) on 26 August 2013 is still yet to pass the Loksabha (second house of parliament).

The Bill proposes a number of amendments to the Hindu Marriage Act 1955 and the Special Marriage Act 1954. The Bill also proposes “divorce on grounds of irretrievable breakdown of marriage if the spouses have lived separately for three years. It will speed up the divorce process, thus avoiding years of litigation.”

The bill also states that “the husband cannot oppose the divorce, the wife can, claiming financial hardship.”

Dutta reports that men’s rights groups have viewed the bill as “anti-men”.

The article states that men fear that the proposal may be “misused by women”. However, women’s groups across the country have apparently welcomed the Bill.

By comparison under the Family Law Act in Australia there is no specific wording in the legislation which either ensures women (or men) they will receive 50% of assets the other party contributed. Rather in most cases, the contributions of both parties are looked at by the Court in a more global way.

The kind of things that can be a contribution include inheritances, the earning of income, lotto wins, gifts from family, initial financial contributions, renovations, homemaker work, and parenting. It is important to note that not only financial, but homemaker and parenting contributions are also relevant. This may lead to better outcomes for women in traditional families where the wife is the “homemaker” and the husband is the “breadwinner” than if homemaker and parenting contributions were not considered by the Court.

The Court also considers the respective “future needs” of parties and this can include their respective earning capacity and also if one party has the primary care of children. Again in matters where a more traditional family structure exists, this can assist the female partner as it means that an adjustment will be made in her favour if say, she has primary care of children and has not worked for some time as compared to a male partner who has been working and earning a high income.

Of course the facts differ in each case and for advice as to what kind of percentage split of the asset pool you would be entitled to you need to speak in depth with a family law solicitor.

If you are seeking advice in relation to how it is likely a Court would see your matter in relation to property being divided between you and your ex-spouse, please make an initial obligation free appointment with one of our solicitors at Armstrong Legal on (02) 9261 4555.

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