Property in divorce
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How is property divided in a divorce case?
Getting divorced involves many decisions of a financial nature. The property in a divorce case needs to be divided. Such property may include real estate, stocks, personal property, bank accounts, and other things. Sometimes the divorcing couple can make equitable arrangements for themselves. If this is the case, then the judge will grant the divorce after mutually agree to divide the property. However, getting a divorce is not always that simple.
Table of contents
- What are the types of property?
- What Type of property can be divided in a divorce?
- What is the process of getting the property at the process of divorce?
- In what circumstance the wife cannot claim for the property?
In the case of divorce, a wife is entitled to a legal share. After divorce, the wife can get the possession right that gives her the right to claim and occupy the property of her husband. She also has the right to control the property without any outside interference. If the divorce cannot be obtained by the mutual consent of both husband and wife, then it is necessary to claim for the property share as per Article 99 of the Civil Code 2074.
What are the types of property?
Before getting a divorce, you need to know what kind of property can be divided and what kind of property cannot be divided between husband and wife. But first, know the types of property that exist. According to Article 255 of the Civil Code 2074, there are 7 types of property:
- Private property,
- Property in common,
- Joint property,
- Community property,
- Public property,
- Government property,
- Trust property
What Type of property can be divided in a divorce?
The court deals with the evaluation and calculation of common property, joint property, coparcenary property, and ancestral property. Let’s see the property which can be divided in a divorce:
Article 257 of the Civil Code 2074, the property can be defined as common property if:
I. It is the property received from the ancestor:
Ancestral property is those properties that are left to the husband by his father, grandfather, and great grandfathers. This can also be the property that has been earned by the ancestors through their farming profession. According to Sub-section 4 of Section 257 of the same Act, the properties earned by parents are also categorized as the ancestral property. Even the property that has been brought by mother in law from her family is also categorized as ancestral property. Similarly, the property that has been earned by the mother in law and father in law also come under the ancestral property. The wife can claim and share the property that is inherited to the husband from his ancestors.
II. It is the Joint property:
In accordance with Article 258 of the Civil Code 2074, the property in the name of two spouses is called joint property. The property that the husband and wife have jointly earned in business is also called the joint property. Therefore, both husband and wife have equal rights over the joint property.
What type of property cannot be divided in a divorce?
Most of the time in marriage, wives privately earn the property. At the time of divorce, most of the women fear that they need to divide their privately earned property as well. However, it is worth being clear in the point that the legal system of Nepal doesn’t give the right of anyone to claim on your privately earned property. To be more specific, women’s private property is not divided at the time of divorce.
Article 256 of the Civil Code 2074 of Nepal has clearly mentioned about private property. The property mentioned below falls under private property:
I. Assets acquired by one’s knowledge and skill: Here the property that has been earned by one’s own job or business is said to be the property earned by knowledge. And the property that has been earned by one’s skill on certain specific things is categorized as assets earned through skill. In this way, the wife if she has earned the property through her knowledge and skill, then she doesn’t have to divide and share such property with her husband.
II. Property that has been given to wife as a donation, gift, or inheritance:
If the wife has the property that has been given to her by her father, mother, brother, and other relatives as gifts, such property is called the gifted property. If the wife has the property that she acquired from her dead parents because she was the only child, such property is called the inherited property. If the wife has received the property as a donation from her brothers and her other relatives, such property is called the donated property. Such properties of the wife are not divided and shared with her husband at the time of divorce. However, such property is categorized as the ancestral property for her children therefore her children will have the right to claim on her property.
III. The property earned through lottery: If either husband or wife has won some kind of lottery, then such property is not divided at the time of divorce. The winner of the lottery has the sole right on such property or winnings.
IV. Remuneration, pension, treatment expenses, savings fund, insurance, or other social security money also fall under private property. Therefore such property is also not divided at the time of divorce.
V. Intellectual property or property received in the form of royalties is also called private property. Such property also cannot be divided at the time of divorce.
VI. Wealth Acquired Before Marriage: The property that has been acquired and multiplied by the women before her marriage through her job or working is also called the private property. Such property is also not divided at the time of divorce.
What is the process of getting the property at the process of divorce?
The procedure to claim and get the property share at the time of divorce can be complicated if you don’t know about the process. So take a look at what you have to do when claiming for the property at the time of divorce:
1. Listing out your property
The first step at the dividing property in a divorce case is making the list of property that needs and can be divided. Such a list is needed to be prepared in the court. Since such property may be sold and fraud may happen, to prevent this type of forgery, the wife should obtain the withheld order from the court. This will prevent any type of selling transaction of such property. Both husband and wife should work together to make a list of all the items they own jointly. If some property or things which both of them own together with don’t carry monetary value or that property or things are useless then they can exclude those things from the list.
2. Value of the property and calculation of the debt/liabilities
After preparing the list of the property, the second step in the division of the property in a divorce case is the calculation and evaluation of the property value. Both husband and wife should come to an agreement on the worth of the property they are going to divide. The parameter to set the value of the real estate property should be done according to the current market price and the price that has been declared by the government. Because the property value differs in cities and villages. the property of the village may be slightly less than the property of the city. therefore, the value should be calculated ad set in such a way that no part gets negatively affected.
At the time of divorce, not only the property is accessed but the debt is also considered. What type of debt has been taken, how much is thee amount o debt, from whom, and by whom the debt has been taken? All these points are needed to be calculated properly.
3. The logical decision on the value of the property and the debt
The valuation of real estate and valuation of shares should be done in a logical manner. Since such valuation can again give rise to disputes and conflicts, therefore such a process is needed to be done by some reliable and authentic representative of the valid an legal institution. Divorce Nepal helps to logically assess the assets of those who want to end the relationship. When we calculate assets, we have to consider how to equalize the liabilities as well. Assets should be valued by dividing the debt. The court or a divorce agreement can decide who is responsible for any debts.
4. The court determines the division of the property
Before dividing the property between the husband and wife the courts consider on following factors to divide the marital or common property:
- The income and property of both the husband and wife.
- How long they have been married to each other or how long the marriage has lasted.
- The age and health of both husband and wife.
5. Demand for lump sum amount or alimony
If you think that you cannot divide your property or that the property cannot be divided equally, then it is better that the wife claim for the lump sum alimony. This will be paid all at once. You can claim fr the lump sum according to Article 99 of the Civil Code 2074. When taking a lump sum, you have to calculate the property liability as well.
In what circumstance the wife cannot claim for the property?
In recent events, various online news and other websites are spreading the illusion among the public that the wife cannot claim for the property if she seeks and files for a divorce. However, this is absurd news. there are special circumstances under which the wife cannot claim for the property. Such as:
- According to subsection 6 of section 99 of Civil Code 2074, if wife evicts her husband from home
- Is she commits mutilation of her husband
- If she causes the severe physical and mental suffering to the husband
- If she has extra-marital relation and physical or sexual relation with other men
One such act of wife is needed to be proved, so you have to present adequate evidence in the court. If the wife is proved guilty, the wife doesn’t get any share or claim on the property.
Division of property in a divorce case can cause many disputes, conflict, and misunderstanding not only between husband and wife but also between two families. Therefore, you should not hesitate to take the assistance of a valid legal institution. Divorce Nepal is one of such institution that can help you with all these lengthening procedures of property division in a divorce case.