Legal Validity of Living Relationship
A limited time offer! Get a custom sample essay written according to your requirements urgent 3h delivery guaranteedOrder Now
Protection of Women from Domestic Violence Act 2005 recognises “relationship in the nature of marriage” and protects female partners from domestic violence. Such partners can claim monetary and other reliefs under the Act. In S. Khushboo Vs. Kanniammal & Anr., the Supreme Court of India, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. & Anr., held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex. The Supreme Court on 13 August 2010 in the case of Madan Mohan Singh & Ors v. Rajni Kant & Anr.  has once again entered the debate on legality of the Live-in Relationship as well as legitimacy of Child born out of such relationship. The Court while dismissing the appeal in the property dispute held that there is a presumption of marriage between those who are in live-in relationship for a long time and this cannot be termed as ‘walking-in and walking-out’ relationship. In the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors.  dealing with the legitimacy of child born out of a live-in relationship and his succession of property rights, the Supreme Court held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn’t have any claim as against Hindu ancestral coparcenary property.
The Delhi High Court in its decision on 10 August 2010, in Alok Kumar v. State & Anr while dealing with the validity of live in relationship held that “‘Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time.”(Para 6) The Supreme Court in the case of D. Velusamy v.D. Patchaiammal  held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the following criteria: (a) The couple must hold themselves out to society as being akin to spouses. (b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. It also held that if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’.
Live-in relationships are living arrangement in which a man and a woman who are unmarried live together like a husband and wife without the legal sanction called marriage. This is a concept that has not gained social acceptance in India. When live-in relationships first came into the open, it created a public outrage as it was considered violative of Indian culture and moral values. Recent court judgments on live in relationships triggered public awareness and clarity about this social issue that has now gained legal sanction as well. Court Judgments: Breakdown of Live-in Relationship is No Excuse to Misuse Justice System
In a landmark court judgment in Alok Kumar v. State, the complainant claimed that she was in a live-in relationship with the defendant for over 5 years. She alleged that the defendant had promised to marry her but later, she came to know that the defendant was about to marry some one else. She met the defendant at the IGI airport to discuss the matter. The defendant gave her his passport before going to the washroom. On returning, he began to abuse her physically. When people came to her rescue, he ran off, leaving his passport with her. Following the incident, she lodged an FIR, under section 376 of IPC against the defendant. However, the Delhi High Court dismissed her plea, observing that live-in relationships create no legal liabilities on either of the parties as it is similar to a contract which can be renewed or terminated at will by either of the parties. Also, the court quashed the FIR to prevent the misuse of criminal justice system for seeking personal revenge against a partner of live-in relationship.
Court Judgments: Children Born to Live-in Couple are not Illegitimate, Says SC
Court judgments have always given broad interpretation of law to protect the rights of women and children. In live-in relationships, court judgments have considered it important to protect child rights, in particular. In January 2008, a Supreme Court bench that was headed by Justice Arijit Pasayat held that children who are born out of live-in relationships will not be considered illegitimate. It was stated, “Law inclines in the interest of legitimacy and thumbs down ‘whoreson’ or ‘fruit of adultery.’”
In August 2010, the Supreme Court held that a live-in relationship that has existed for a long time will be considered a marriage and that the children born to such a couple will not be illegitimate. Justice P Sathasivam and Justice BS Chauhan of the Supreme Court passed this judgment and it will have strong legal implications on disputes relating to the legitimacy of children who are born to live-in partners.
Court Judgments: Domestic Violence Act Applicable to Live-in Relationships
Different court judgments have discussed on different disputes pertaining to live-in relationships. Live-in relationships are now considered at par with marriage under a new Indian law pertaining to domestic violence. The provisions of the Domestic Violence Act, 2005 are now extended to those who are in live-in relationships as well. The amendments intend to protect the victims of domestic abuse in live-in relationships. Section 2 (g) of the aforementioned Act provides that a relationship between two individuals who live together or have lived together in the past is considered as a domestic relationship. A woman who is in a live-in relationship can seek legal relief against her partner in case of abuse and harassment. Further, the new law also protects Indian women who are trapped in fraudulent or invalid marriages.
Compensation order under DV Act, 2005
Thursday February 15 2007 11:16 IST
KOCHI: Besides a ‘protection order’ and a ‘residence order’, a woman who suffers domestic violence of any nature, can obtain monetary relief, a custody order, and a compensation order from a Judicial Magistrate, under the Protection of Women from Domestic Violence Act, 2005. What is monetary relief?
The Magistrate can direct the respondent to pay monetary relief to the aggrieved woman, by way of compensation the expenses incurred and losses suffered by her. It is meant to meet the expenses incurred and losses suffered by her and any child of hers, as a result of domestic violence. Monetary relief can be ordered at any stage during the hearing of an application seeking any relief under the Act. Monetary relief includes (a) the loss of earnings due to domestic violence (b) the medical expenses (c) the loss caused due to the destruction, damage or removal of any property from her control and (d) maintenance for her and her children, if any. The maintenance under the Protection of Women from Domestic Violence Act can be in addition to the usual maintenance obtained by women, children and parents under Section 125 of the CrPC or other laws applicable to them.
The monetary relief granted under the Act shall be adequate, fair and reasonable and consistent with the standard of living to which the woman is accustomed. The Magistrate has the power to order a lump sum payment or monthly payments of maintenance, depending up on the nature and circumstances of the case. The Magistrate should send a copy of the order for monetary relief to both parties, and to the officer in charge of the police station within the local limits of whose jurisdiction the respondent resides. Once the copy is received, the respondent should pay the monetary relief granted, within the period specified in the order. If the respondent fails to make payment, the Magistrate can direct his employer, or even a debtor, to directly pay to the aggrieved woman. The magistrate can also direct them to deposit with the court a portion of the wages or salaries or debt due to the respondent, or accrued to his credit. What is a compensation order?
In addition to the monetary relief, the Magistrate is empowered to pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent. For getting such a compensation the aggrieved woman should make an application. What is a custody order?
The Magistrate can, at any stage of hearing of the application for protection order or for any other relief under the Act, grant temporary custody of any child or children to the aggrieved woman or the person making an application on her behalf. The Magistrate may specify the arrangements for the visit of the child or children by the respondent. But if the Magistrate is of the opinion that the respondent’s visit may be harmful to the interests of the child/children, he should refuse such visits. n How long will an order last? A protection order will be in force till the aggrieved person applies for discharge. But other orders can be altered or revoked at the instance of either of the parties. But, the Magistrate must be satisfied that there is a change in the circumstances requiring alteration or revocation of any order.
If so satisfied, he can pass such orders after recording in writing the reasons for the same. n Should the aggrieved woman pay for the copies of the order passed by the Magistrate? No. In all cases where the Magistrate has passed an order under the Act, he is bound to direct that a copy of such order be given free of cost to both the parties. Besides the parties, the police officer in-charge of the police station under the jurisdiction of which the Magistrate has been approached, and any service provider located within the local limits of the jurisdiction of the court, and the service provider who has registered a domestic incident report, should be given free copies. Has she got a right to counselling?
Yes. The Magistrate can direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling. Usually a member of a service provider, who possesses qualifications and experience in counselling, will be asked to do the counseling. Besides counselling, the Magistrate can secure the services of experts for assisting him in discharging his functions. The Act provides that such person should preferably be a woman, including a person engaged in promoting family welfare. Courtesy_
In a much awaited observation on live-in relationships, the Supreme Court opined that a man and a woman living together without marriage cannot be construed as an offence. “When two people want to live together, what is the offence? Does it amount to an offence?” a special three-Judge Bench constituting the Chief Justice of India, K.G. Balakrishnan and Justices Deepak Verma and B.S. Chauhan observed. The Supreme Court said that there was no law prohibiting live-in relationships or pre-marital sex. “Living together is a right to live” the Supreme Court said, apparently referring to Article 21 of the Constitution of India which guarantees right to life and personal liberty as a fundamental right. The Supreme Court made the observation while reserving its judgment on a Special Leave Petition filed by a noted South Indian actress, Khushboo seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-marital sex in interviews to various magazines in 2005.
Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married.
Today, cohabitation is a common pattern among people in the Western world. People may live together for a number of reasons. These may include wanting to test the compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, for instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or permitted. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, a way to avoid the higher income taxes paid by some two-income married couples (in the United States), negative effects on pension payments (among older people), philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals may also choose cohabitation because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.
Position Of Live-In Relationships Abroad
With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live-in couples around the world. While heterosexual couples who are in a live-in relationship are called “co-habitant”, same sex couples are legally defined as “civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unaware of their rights and duties to each other.
Family Law (Scotland) Act, 2006, for the first time identified, and in the process by default, legalised live-in relationships of over 150000 cohabiting couples in the country. Section 25(2) of the Act states that a court of law can consider a person as a co-habitant of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements.
Live-in relationships in France are governed by the Civil Solidarity Pact of ‘pacte civil de solidarite’ or PaCS, passed by the French National Assembly in October 1999. Cohabitation is defined as a “de facto stable and continuous relationship” between two persons of different sexes or of the same sex living together as couple. The pact defines the relationshp as a contract, and the couples involved as “contractants”. The contract binds “two adults of different sexes or of the same sex, in order to organise their common life.” For a valid contract to exist, the contractants “may not be bound” by another pact, “by marriage, sibling or lineage.”
• United Kingdom
Live-in relationships in the United Kingdom are largely covered by the Civil Partnership Act, 2004. Though a man and woman living together in a stable sexual relationship are often referred to as “common law spouses”, the expression is not wholly correct in law in England and Wales. The Government feels that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other’s property on breakdown of relationship. If a cohabiting couple separates, the Courts have no power to override the strict legal ownership of property and divide it as they may do on divorce. Unmarried partners have no automatic inheritance over their partner’s assets on death. Cohabiting couples are treated as unconnected individuals for taxation purposes.
Living together in Canada is legally recognised as “common law marriage”. In many cases common law couples have the same rights as married couples under the federal law of the country. A common law relationship gets legal sanctity if the couple has been living in a conjugal relationship for atleast 12 continuous months, or the couple are parents of a child by birth or adoption, or one of the persons has custody and control of the child and the child is wholly dependent on that person for support.
Though living together is legally recognised in Ireland, news reports says the public is up in arms against a new legislation to introduce legal rights for “separated” live-in couples to demand maintenance or share their property with their dependent partners. The scheme will apply to both opposite sexs and same sex unmarried couples who have been living together for three years, or two years in the case of a cohabiting couple with children. The Government, with this legislation, intends to provide legal and financial protection for the vulnerable and financially dependent cohabitants in the event of death or the break up of a relationship.
The Family Law Act of Australia states that a “de facto relationship” can exist between two people of different or of the same sex and that a person can be in a de-facto relationship even if legally married to another person or in a defacto relationship with someone else.
• United States
Cohabitation was illegal in the United States prior in 1970, but went on to gain status as a common law, subject to certain requirements. The American legal history was then a witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the “prenuptial agreements”. The country later institutionalized cohabitation by giving cohabiters essentially the same rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living together are not recognized as legal parents.
Position Of Live-In Relationships In India
In India, cohabitation had been a taboo since British rule. However, this is no longer true in big cities, but is still often found in rural areas with more conservative values. Female live-in partners have economic rights under Protections of Women and Domestic Violence Act, 2005.
The Maharashtra Government in October 2008 approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable peroid’, should get the status of a wife. Whether a period is a ‘reasonable period’ or not is determined by the facts and circumstances of each case.
The National Commission for Women recommended to the Ministry of Women and Child Development in 30th June, 2008 that the definition of ‘wife’ as described in section 125 of Cr.P.C., must include women involved in a live-in relationship. The aim of the recommendation was to harmonise the provisions of law dealing with protection of women from domestic violence and also to put a live-in couple’s relationship at par with that of a legally married couple. There was a Committee set up by the Supreme Court for this purpose, called the Justice Malimath Committee, which observed that “if a man and a woman are living together as husband and wife for a reasonable long period, the man shall be deemed to have married the woman.”
The Malimath Committee had also suggested that the word ‘wife’ under Cr.P.C. be amended to include a ‘woman living with the man like his wife’ so that even a woman having a live-in relationship with a man would also be entitled to alimony. On 16.09.2009, the Supreme Court in a case observed that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under section 125 of Cr.P.C.. A woman in a live-in relationship may also claim maintenance under section 125 Cr.P.C..
In a case the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has the right to live with a man even without getting married, if both so wish”. The Supreme Court observed that a man and woman, if involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be considered as legitimate.
Pros And Cons Of Live-In Relationships
The Supreme Court’s controversial observation okaying live-in relationships and pre-marital sex has generated fierce debate across the country. The historic observation has made to upset many orthodox groups fearing that it would destroy the sanctity of marriage. A fragment of the society including noted social activists and prominent dignitaries have stepped ahead and shared their precious views on this.
“We hope the Government shall take proper steps to safeguard Indian women’s rights and dignity and save the society from chaos”, said Maa Ghara Foundation Trustee, Rutuparna Mohanty. “It will start unraveling the fabric of Indian family life”, she said. She also viewed that it would give rise to child pregnancy and has far reaching ramifications, adding despite its aim to restrict multiple partners; it would have an adverse impact on the youths and result in the spread of HIV/AIDS. “Children born out of living together relationships would not be properly brought up,” Mohanty rued.
Social scientists have already identified grave social problems like young age pregnancy of adolescent girls, drug abuse, violence and juvenile delinquencies and in the wake of the controversial ruling, the erstwhile objectionable social behaviour gets legalized, many felt. This way, the new generation will be more spoilt. They will prefer live-in relationships to marriages arranged by their parents. There is no guarantee that the male in such relationship will turn out to be a loyal partner in the long run or would not leave the woman with their issues and run away without prior notice.
BJP spokesperson Shaina, expressed that, according to the Hindu Marriage Act, 1955, there is no provision for a second wife among Hindus. Hence, enabling the mistress to get the status of a legally married wife in all matters, including share in property, inheritance, and maintenance is contrary to the Act as well as Hindu customs.”
When the Maharastra Government approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable peroid’, should get the status of a wife, Shaina said that the Government on one hand has banned dance bars because they are spoiling the social atmosphere, while on the other it is promoting illicit relationships through such amendments. Senior BJP leader Jaywantiben Mehta also opposed the amendment. “It will have adverse effect on our values. The amendment will prove to be a loss for the women instead of gain,” she said.
On the other hand, the section advocating freedom of choosing live-in relationship has hailed it as a pragmatic move. The recent observations, as they see, should be welcomed because it lays down emphasis on individual freedom. It opens frontiers to understand the personality traits of their partner well. Since there are no legal complications in a live-in relationship, walking out of such a relationship would be much easier than walking out of a marriage. Metro life that throws floodgates of challenges also supports this kind of an arrangement. The individuals should be free to live as they think best, subject only to the limitation that their actions and choices should not cause harm to others. It is a very radical attitude. Some people are of the view that women should be given the liberty to choose their life partners and should not be forced into marriages if they are not ready.
As expected, women from various walks of life have welcomed progressive moves on live-in relationships. Jaishree Misra, a New Delhi based author says, “India has changed. If people think youngsters are losing their values, then I would say they are becoming more pragmatic. In today’s times, it is better for them to know what they are getting into”.
This is not the first time live-in relationship is in the ambit of debates and discussions. There has been a long-standing controversy whether a relationship between a man and a woman living together without marriage can be recognized by law. With changing social hypothesis entering the society, in most places, it is legal for unmarried people to live together. Now even in a country like India bounded by innumerable cultural ethics and rites, the law finds legally nothing wrong in live-in relationships.
This, however, cannot be construed that law promotes such relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. Such stands, in particular cases of live-in relationship, it appears that, by and large, is based on the assumption that they are not between equals and therefore women must be protected by the courts from the patriarchal power that defines marriage, which covers these relationships too.
Legitimacy Of The Child Born Out Of A Live-In Relationship
The Supreme Court on an earlier occasion, while deciding a case involving the legitimacy of a child born out of wedlock has ruled that if a man and a woman are involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be legitimate. Also, the recent changes introduced in law through the Domestic Violence Act, 2005 gives protection to women involved in such relationships for a ‘reasonable long period’ and promises them the status of wives. A Supreme Court Bench headed by Justice Arijit Pasayat declared that children born out of such a relationship will no more be called illegitimate. “Law inclines in the interest of legitimacy and thumbs down ‘whoreson’ or ‘fruit of adultery’.”
The Supreme Court held that a child born out of a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenary property (in the case of an undivided joint Hindu family) and can only claim a share in the parents’ self-acquired property. The Bench set aside a Madras High Court judgment, which held that children born out of live-in relationships were entitled to a share in ancestral property as there was a presumption of marriage in view of the long relationship.
Reiterating an earlier ruling, a Vacation Bench of Justices B.S. Chauhan and Swatanter Kumar said, “In view of the legal fiction contained in Section 16 of the Hindu Marriage Act, 1955 (legitimacy of children of void and voidable marriages), the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.”
A child can only make a claim on the person’s self acquired property, in case the child is illegitimate. It can also be interpreted in a way in which a child could lay a claim on the share of a parents’ ancestral property as they can ask for that parents’ share in such property, as Section 16 permits a share in the parents’ property. Hence, it could be argued that the person is not only entitled to self acquired property but also a share in the ancestral property.
The Apex Court also stated that while the marriage exists, a spouse cannot claim the live-in relationship with some other person and seek inheritance for the children from the property of that other person. The relationship with some other person, while the husband is living is not ‘live-in relationship’ but ‘adultery’. It is further clarified that ‘live in relationship’ is permissible in unmarried heterosexuals (in case, one of the said persons is married, the man may be guilty of adultery and it would amount to an offence under Section 497 of the Indian Penal Code).
Conclusion And Suggestions
Live-in relationships are now very popular in India. The law does not prescribe how we should live; it is ethics and social norms which explain the essence of living in welfare model. The Court itself notices that what law sees as no crime may still be immoral. It has said in a judgement of 2006, notices by the Court now, that two consenting adults engaging in sex is not an offence in law “even though it may be perceived as immoral.” Of course, such protective sanctions may potentially lead to complications that could otherwise be avoided. But simply raising the hammer may not be the best route to taming the bold and the brave. Awareness has to be created in these young minds not just from the point of the emotional and societal pressures that such a relationship may create, but also the fact that it could give rise to various legal hassles on issues like division of property, violence, cases of desertion by death of a partner and handling of custody and other issues when it comes to children resulting from such relationships.
While the Supreme Court’s opinion might not have the undesirable effect on more and more couples preferring live-in relationships rather that opting to wed, it could certainly embolden more young men and women as they would now be convinced that there is no breach of law in the live-in relationship. One can only weigh the pros and cons and take into account the impact of their decision on their family and most importantly on themselves.  S. Khushboo v. Kanniammal and Anr. 2010 (4) SCALE 462.
 Abhijit Bhikaseth Auti v.State Of Maharashtra and Others  Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others.  Bharatha Matha & Anr. v. R.Vijaya Renganathan & Ors. 2010 STPL(Web) 406 SC.  Lata Singh v. State of U.P. and Anr. AIR 2006 SC 2522
The courts have no authority over non-marital property. So, the first thing the court has to do is determine whether they have authority over property. Generally speaking, all property acquired by either spouse before the marriage is considered non-marital property. All property acquired after the marriage is considered property of the marriage or marital property. If the property is marital property then the court must “equitably” divide the property. Property Is Presumed To Be Marital Property Except For:
* Property acquired by gift, legacy or descent.
* Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent. * Property acquired by a spouse after a Judgment ofLegal Separation. * Property excluded by valid agreement of the parties.
* Any judgment or property obtained by judgment awarded to a spouse from the other spouse. * Property acquired before the marriage.
When marital and non-marital property has been combined the process of determining marital property can be quite complicated. For example, what happens when one spouse uses non-marital property such as an inheritance to buy a house with the other spouse? What happens when one spouse inherits money and that money is put in a joint bank account? If a court decides that property is marital property then the court must determine how to “equitably” split the property. State divorce laws differ on the meaning of “equitable” and most states do not consider “equitable” to mean equal. When Dividing Marital Property The Courts Consider The Following: * The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit. * The dissipation by each spouse of the marital or non-marital property. * The value of the property assigned to each spouse.
* The duration of the marriage.
* The economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live in the home for a reasonable period, to the spouse having custody of the children. * Any obligation and rights arising from a prior marriage of either party. * Any post-nuptial agreement of the parties.
* The age, health, occupation, amount and sources of income, vocational skills, marketable skills, estate, liabilities, and needs of each of the parties. * The custodial needs of any children.
* The reasonable opportunity of each spouse for future acquisition of capital assets and income, the tax consequences of the property division upon the respective economic circumstances of the parties. It is important that you hire an attorney who is familiar with your state’s laws and how your particular court jurisdiction normally handles property distribution in order to help you resolve this very complicated issue.
When unmarried couples live together for a while, it is likely that they accumulate a good amount of property. In this case, it is in each person’s best interest to write out a property agreement that spells out who owns what and how the property will be distributed should the couple separate. This is especially important if a couple acquires real estate together. On the other hand, this agreement is probably not necessary for couples who have only lived together a short time and do not have much property. Without an agreement, you could face expensive and time consuming legal battles, defending your property rights. This trouble can be saved by each party entering an agreement they both consent to, while the relationship is sound. What a Cohabitation Property Agreement Should Include
A cohabitation property agreement is about you and your partner, and therefore, should include what meets the specific needs of your relationship. Most agreements include the following: * How specific assets are owned
* Whether or not, and how, income and expenses are shared * How newly acquired assets are owned
* How bank accounts, credit cards, insurance policies, etc. will be managed * How specific assets will be distributed in the event of a separation, or what process will be used for resolving disputes of property rights How to Cover your House in a Cohabitation Property Agreement Because buying a house together is such a huge financial responsibility and can carry emotional ties with it, including the purchase of your home in your cohabitation property agreement is particularly important. Take extra care with your plans to ensure that you do not cut yourself short of your property rights. This part of your contract should cover at least the following: * How the ownership is listed on the deed of the house. If you own the house as “joint tenants with right of survivorship,” when one of you dies, the other automatically inherits the entire house. If you own the house as “tenants in common,” when one of you dies that person’s share of the house goes to whomever he or she names in a will or trust.
If the deceased person does not have a will or trust, his or her portion of the house will go to blood relatives according to state law. * How much of the house each partner owns. Additionally, you should include how any portion of the home can be transferred between the partners. For example, if the one who owns less can acquire more by making improvements or mortgage payments, this should be specified in the agreement. * The buyout rights, if any, and how the house will be appraised. Usually, people decide to have their original realtor appraise the house. Then, they allow one partner no more than five years to pay the other partner for the home. This varies, and should be specified to your own specific needs. * What happens to the house if you break up. Decide how the proceeds will be divided upon a sale, who will stay in the house if it is not sold, or what your buyout plan will be. Support Payments
Many people use the term “palimony” to refer to support paid to an ex-partner when the couple was never married. Palimony is not a legal term and carries no legal significance. In fact, members of unmarried couples have no rights to support, unless the two have previously agreed on it. To avoid a tense disagreement about palimony, it is in the couple’s best interest to include whether or not support will be paid in a written agreement. Recently, the California Supreme Court ruled that an ex-partner could sue for support if he or she could show that an implied contract existed between the two. Importance of Including Income in a Cohabitation Property Agreement Creating a cohabitation property agreement in the beginning, while the relationship is still sound can avoid a lot of tension, disagreement, and hassle should the couple break up. Property that is owned separately could be changed by the circumstances or by one of the partners claiming that there was an agreement to something, when there really was not.
This becomes even more important when one of the partners makes significantly more money and supports the other partner who has little or no income. Example: Pat and Sam are unmarried partners who decide to move in together. Pat is a successful surgeon, and Sam is unemployed. They use Pat’s income to purchase a home that Sam will fix up. To protect their individual property rights, just in case they break up, they decide to enter into a written cohabitation property agreement. In the agreement, they decide that after Sam completes the home improvements according to the couple’s plans, they will become joint tenants with the right of survivorship. They also agree that all furniture and fixtures that they place in the home will be owned and divided equally, should they break up. Their agreement explains that if the couple breaks up, that Sam would remain in the house to care for their child, but that Sam will compensate Pat for Pat’s portion within 5 years. Aside from this house payment, no support or other payments will be exchanged between the couple. Liability for Debts
Unmarried partners are not responsible for each other’s debt unless they have a joint account or one is a cosigner or guarantor for the other. This is different from married partners who can be held liable for marital debts. In some states, registered domestic partners are responsible for all debts acquired for basic living expenses, like food, shelter, and clothing. Property Rights of a Surviving Cohabitating Partner
Unless a partner leaves property to the other by will or trust, a surviving partner has no property rights to the deceased partner’s individual property. Of course, if the couple owns real estate as joint tenants with rights of survivorship, then the surviving partner will inherit the deceased partner’s half. Some states that recognize domestic partnerships do have rights to inherit a portion of the deceased partner’s property. However, the best way to provide for the surviving partner is by leaving a will or living trust. Property agreements are very important and useful tools for protecting the property rights of unmarried, cohabitating partners. The agreement should be designed according to the couple’s specific situation. If your certain circumstances are complicated or you have questions about how your property rights can be affected by your relationship, consult a family law attorney.
MUMBAI: When it comes to property rights in matrimony, gender matters. The issue of property rights for women within a marriage has long been an area of concern across the world. While Maharashtra is now considering the idea of granting women equal rights in their husband’s property, women’s rights were being asserted in the US way back in 1771. Almost two-and-a-half centuries ago, New York brought in a law preventing a married man from selling or transferring his wife’s property without her approval. Women’s rights within their marriage have always put them at a disadvantage. Early laws in the United States followed the British law and gave women little financial independence over property, though things changed by 1900. But property rights of women in a marriage are still key areas of concern in an era where divorce rates are soaring.
In India, those campaigning for women’s matrimonial property rights, including leading women lawyers in the Supreme Court, have also highlighted the need to recognize equal rights of women, be they wives or live-in partners, to property and assets. There are currently no specific laws in India that give a woman joint ownership rights over her husband’s property upon marriage. SC lawyer Kirti Singh points out that in the absence of a specific law that legalizes women’s rights over her matrimonial or husband’s property, courts tend to follow the Common Law practice of “separation of property.” Women, especially working women, who work doubly hard in rearing a child and looking after the home, often end up getting very little during a divorce, despite their invaluable contribution towards the family, activists assert. A woman’s contribution in kind gets ignored in India, but many countries have recognized its value.
The Australian Family Law of 1975 provides for courts’ assessment of the non-financial contribution made by wives to the welfare of the family through unpaid work at home and care of children. Elsewhere in Ireland, changes in law recognize a wife’s domestic duties. A Canadian law governing division of matrimonial property also stipulates that child care, house management and providing finance is a joint responsibility that brings with it joint rights over property. In India, Goa is an exception as matrimonial property rights are afforded under the Portuguese Civil Code of 1867. But elsewhere across states, there is no legislation that provides for equitable division of property and assets upon marital separation, divorce or desertion. Box
Wives, down the ages—in law
In 1848: New York brought the Married Women’s Property Act. An expansion of property rights of married women. 1860, New York introduced a law to govern rights and liabilities of husband and wife; expanded married women’s property rights. 1882: The Married Women’s Property Act, enacted in UK heralded significant property rights to married women, allowing them to own and control their own property. Matrimonial Property rights however are of concern even today in UK. Much depends on how the property is owned and whether it is in joint names. But couples can draw up prenuptial or co-habiting agreement when they first acquired the property. But a married woman has a right of occupation of the matrimonial property whether or not its in her name. Box
Wives, down the ages—in law
In 1848: New York brought the Married Women’s Property Act. An expansion of property rights of married women. 1860, New York introduced a law to govern rights and liabilities of husband and wife; expanded married women’s property rights. 1882: The Married Women’s Property Act, enacted in UK heralded significant property rights to married women, allowing them to own and control their own property
Marriage law: Women may get right to marital property
NEW DELHI: Women may be able to stake claim to marital property if an amendment to matrimonial laws is accepted by the Cabinet. Among the amendments proposed by the government are allowing courts to decide on how property acquired during marriage is shared and powers to waive off six-month period of staying together before divorce can be granted in cases where the separation is by mutual consent. Also, adopted kids are likely to get the same rights as natural-born kids. The Marriage Laws (amendment) Bill, which is likely to come up before the Cabinet on Thursday, seeks to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
The amendments are based on the recommendations of the standing committee on personnel, public grievances, law and justice. The panel had recommended that the government make provisions to ensure that courts, at the time of divorce, can decide on the share of women in the matrimonial property, to which they have contributed during the marriage.
The committee had rejected the government’s proposal to remove the six-month waiting period before moving a joint motion in case of divorce by mutual consent. But giving in to concerns expressed by women’s rights activists, the government has suggested that the judge will have the power to waive off the waiting period. The amendments are likely to stir a debate, with activists opposed to such powers being left to the court’s discretion. Women’s rights advocate and former Law Commission member Kirti Singh said, “This is less than a half measure and requires widespread discussion with women’s groups.”
Studies have shown that in 80% cases, women have no place to go to after divorce and live with their parents. “Women should get half or more of the share of matrimonial property because they have contributed to it. They have no resources to take care of children and the aged, and that must be kept in consideration,” Singh said.
Women’s activist Kalyani Menon Sen, too, expressed concern over the amendments, “There have been a large number of brilliant judgments, but there is a huge section of judiciary that can be extremely anti-women and patriarchal. We have seen some examples of appalling moral policing and we can’t depend in the judiciary to be even-handed always.”
What’s yours should remain yours
The joint select committee of Parliament, in its 45th report submitted to the Rajya Sabha earlier this month, has urged the government to consider the introduction of the principle of “division of matrimonial property” into our matrimonial statutes. This is a sort of victory for women’s organisations who have long been campaigning for this right. This is the first time such a recommendation finds a place in official discourse, and marks a new beginning. The recommendation was made while examining the feasibility of introducing the provision of irretrievable breakdown of marriage (IBM) into our marriage laws. It is indeed surprising to note that while the Law Commission in its various reports had recommended that IBM should be introduced as a ground for divorce, it had failed to recommend that such a provision should be accompanied by a provision for division of matrimonial property. The basis for the recommendation was that several Western countries have incorporated such a provision into their matrimonial statute. But the short-sighted recommendation had failed to examine the provision in Western countries in its totality.
Every country that has introduced this provision has also simultaneously incorporated the principle of division of matrimonial property. It was obvious that without such a provision, the introduction of IBM would cause grave hardships to both home-maker wives as well as to women shouldering the double burden of wage employment and home-making. Alarmed at the government’s intention to introduce a bill on IBM, women’s organisations urged the law minister to consider including the provision of division of property at the time of divorce into this bill. So after its introduction on August 2, 2010, the bill was referred to the joint select committee of Parliament, whose recommendations now come as welcome respite. Under the legal regime of separation of property, the property acquired by the husband is deemed to be exclusively his. And so, divorce renders most women destitute, devoid of shelter, economic security and property rights. While superficially, the notion that each person is entitled to their own property appears to be a just and equitable one, as we probe deeper into the ascribed gender roles within marriage, it becomes problematic.
Our society views men as the primary breadwinners of the family. In order to facilitate this process, a woman is expected to sacrifice her career and dedicate herself totally to the task of caring for him. In this process, she is also expected to take on the task of home-making, child-bearing, child-rearing and caring for the sick. Even if she is required or permitted to work, in most situations, it would only be to augment the family income. Her earnings are treated as the family’s supplementary income. The contribution of the home-maker spouse has no economic value. In a recent ruling, Arun Kumar Agarwal vs National Insurance Company (AIR 2010 SC 3426), the Supreme Court criticised the 2001 census enumeration which categorised 367 million home-makers as “non-workers” along with beggars, prisoners and prostitutes. Though the matrimonial property gets accumulated through the active contribution of the home-maker wife, the husband exercises exclusive ownership rights over it. So when a marriage breaks down, most women are rendered destitute. A woman’s right is confined to a monthly maintenance dole. If the woman has an independent source of income, she is denied even this meagre amount. During divorce proceedings, substantial sums can be secured to the wife only through negotiations during court proceedings in the event that the husband a hasty divorce.
The introduction of this ground will take away the bargaining power that women have during divorce proceedings filed by their husbands and will render their situation even worse. It is in this context that the 1995 ruling in Ramesh Chander vs Savitri, (1995 (2) SCC 7) is an important marker. The Supreme Court directed the husband to transfer the house owned by him to the wife at the time of awarding a decree of divorce on the ground that the marriage has broken down irretrievably. Under the legal regime of separation of property, the property acquired by the husband is deemed to be exclusively his. And so, divorce renders most women destitute, devoid of shelter, economic security and property rights. While superficially, the notion that each person is entitled to their own property appears to be a just and equitable one, as we probe deeper into the ascribed gender roles within marriage, it becomes problematic. Our society views men as the primary breadwinners of the family. In order to facilitate this process, a woman is expected to sacrifice her career and dedicate herself totally to the task of caring for him.
In this process, she is also expected to take on the task of home-making, child-bearing, child-rearing and caring for the sick. Even if she is required or permitted to work, in most situations, it would only be to augment the family income. Her earnings are treated as the family’s supplementary income. The contribution of the home-maker spouse has no economic value. In a recent ruling, Arun Kumar Agarwal vs National Insurance Company (AIR 2010 SC 3426), the Supreme Court criticised the 2001 census enumeration which categorised 367 million home-makers as “non-workers” along with beggars, prisoners and prostitutes. Though the matrimonial property gets accumulated through the active contribution of the home-maker wife, the husband exercises exclusive ownership rights over it. So when a marriage breaks down, most women are rendered destitute.
A woman’s right is confined to a monthly maintenance dole. If the woman has an independent source of income, she is denied even this meagre amount. During divorce proceedings, substantial sums can be secured to the wife only through negotiations during court proceedings in the event that the husband a hasty divorce. The introduction of this ground will take away the bargaining power that women have during divorce proceedings filed by their husbands and will render their situation even worse. It is in this context that the 1995 ruling in Ramesh Chander vs Savitri, (1995 (2) SCC 7) is an important marker. The Supreme Court directed the husband to transfer the house owned by him to the wife at the time of awarding a decree of divorce on the ground that the marriage has broken down irretrievably.
Parliamentary Committee on the Ministry of Personnel, Public Grievances and Law and Justice, — headed by Congress Member of Parliament Jayanthi Natarajan has recommended marital property split to be added to protect the rights of women with respect to Hindu Marriage Act amendment. a.k.a THE MARRIAGE LAWS (AMENDMENT) BILL, 2010. I believe the said proposal needs an altogether different discussion than as part of the said bill. Apparently, it should be rephrased to “Marital Division” rather than “Marital PROPERTY division”. It is gross violation of natural justice to give wives a share of properties whereas husbands are left with the burden of all liabilities accumulated during the course of marriage. I hereby recommend to kindly consider the following points while drafting the new law regarding marital division. 1. Assets as well as liabilities should be considered for marital division; where such a division of assets should be exactly proportionate to the monetary contribution made by the parties and division of liabilities should be exactly proportionate to the share of commitment towards the liabilities.
2. If the demand for considering Wife’s contribution of time and energy to the family is to be counted, then Husband’s contribution of their time, energy and money towards the family should also be counted proportionately. It is a universal truth that a housewife spends her time inside the house and husband spends his time outside the house for bringing food shelter clothing and entertainment for entire family. 3. If feminazis are asking to evaluate contribution of pregnancy, then sole custody should be granted to the Husband if she chooses to go with marital division and there should not arise any question of child support as well. Sole custody is child abuse so I personally DO NOT recommend this option. On the other hand if pregnancy is decided to be given a monetary value and husband has to pay that share, then he should be given his right to discuss and set that value before marriage through prenuptial agreement. Respective legislation should be brought in along with the said bill to give prenuptial agreement its legal validity. 4. No marital division should be made if the marriage is shorter than the length defined in IPC 304(B).
Section 113B of The Indian Evidence Act, 1872 forces the judiciary not to apply its mind and presume a person had caused the dowry death whenever such a question arises. In other words Indian justice system recognizes a person as husband only after the term defined in IPC 304(B), until then marriage is not solemnized and he is PRESUMED to be a dowry killer. 5. Marital division and maintenance must be mutually exclusive. 6. Child support and custody should be split equally (if pregnancy is not evaluated in marital division). 7. Maintenance should be limited to the number of years of cohabitation. 8. Maintenance should be calculated from 36% of spouse’s gross incomeless all monthly debt payments. (64% should be left for taxes and to lead a decent life; pushing a person to the streets just because s/he “committed” a marriage is against natural justice!).These figures are followed as a thumb rule by most banks as “debt-to-income ratio of 28/36″. This means that no more than 28 percent of your total monthly income (from all sources and before taxes) can go towards housing, and no more than 36 percent of your monthly income can go toward your total monthly debt. I humbly request to consider maintenance payment similar to debt payment.
Domestic Violence Cases
A series of cases which have obtained compensation and/or protection for domestic violence victims These are a series of Domestic Violence cases handled by HRLN (Karnataka). In all of the cases below, the “Respondent” listed is the perpetrator of domestic violence, usually the husband of the victim. Through HRLN’s intervention, all of the below victims have received compensation and protection. (Note: the names of all the victims have been changed to protect their identity) Case Details and Status
This was the first case filed in Karnataka under The Protection of Women from Domestic Violence Act, seeking for Residence and maintenance order, even though The Protection Officer was not appointed. The application is partly allowed. The applicant should not be vacated from the shared household. Respondent is directed to pay Rs. 1,000/month and Rs. 10,000 for compensation.
Case is filed by the applicant under section 12 of DVA. The application filed by the applicant under section 12 of DVA is allowed. First there was an interim passed directing the Respondent to pay Rs 3,000 per month as interim maintenance to the Petitioner and her child. Then the final order was passed with a direction that the Respondent should pay Rs 8,000 per month towards maintenance. But the magistrate has not taken into consideration the other above mentioned reliefs has not been granted to us. Appeal has been filed.
Application under sec. 20 and 22 of Protection of Women from Domestic Violence Act is hereby allowed partly. Respondent is hereby directed to pay compensation of Rs. 50,000/- with respect to mental torture and emotional distress, so also Rs. 2, 00,000/- compensation for loss of earnings.
Further evidence of the applicant/aggrieved person; Interim order – respondent has to pay maintenance
It is ordered that the respondent should not in any way commit domestic violence. He should not enter her workplace nor disturb her. He should not communicate with her either electronic, oral, written or telephone. He should not alienate any property, bank accounts, and bank lockers. He should not operate joint bank account. He should not alienate her stridhan or any property. Respondent has to pay Rs. 25,000 and Rs. 1,000 towards maintenance for her.
This case was filed under Domestic Violence Act seeking for maintenance and protection order for Archana S. and her child as the Respondent was not looking after them and for the violence committed against her.
Direction the Respondent not to disturb and her child and further directed the Respondent to pay monthly maintenance of Rs 1,000 per month.
The Respondent is directed to pay Rs 3,000 per month to the Petitioner and her child from the date of this Petition
This writ petition was filed under the article 226 praying to quash the impugned order of the first additional Family court as it directs the Petitioner herein to pay interim maintenance of Rs. 1500 to the respondents.
The petition was dismissed. And the due interim maintenance was ordered to be paid within time frame of 8 weeks