Marriage Law that define Alimony

Marriages are relatively easy affairs. After all, they are made in heaven and presumably orchestrated by the gods. Divorce, on the other hand, is the devil's domain - messy, complicated and traumatic. So how do various countries with their disparate cultures deal with the ravages of separation? What are the tenets that define alimony, spousal support and division of property? And was there more than what met the eye when Tom Cruise and Nicole Kidman called it quits just before their 10th anniversary?


Divorce in India is governed by different laws for different communities. The Hindu Marriage Act, 1955, governs divorce for all Hindus, Sikhs, Buddhists and Jains; the Dissolution of Muslim Marriages Act, 1939 governs divorce for Muslims; divorce for Christians is possible under the Indian Divorce Act, 1869, and Parsis can divorce under the Parsi Marriage and Divorce Act, 1936.


Inter community marriages and divorces, on the other hand, are governed by the Special Marriage Act,1954.This gamut of laws was created to provide individual treatment to different communities and these have evolved through case laws over the past few decades. However, in India, marriage is still largely considered inviolable and this is reflected in the treatment that divorce proceedings receive in our courts and society.


Divorce proceedings in India are intended to be lengthy affairs and this is backed by the belief that an extended litigation time span may allow couples to reconsider their decision for divorce. Also, because of the social non-acceptance of divorces and the reluctance of the affluent sections of society to expose their lives to the inevitable public glare, most high profile divorces have property settlements done out of the court.


In most cases in India, the fulcrum of divorce litigation is alimony, while division of property is generally of principal interest in developed countries. This may be ascribed to the economic independence of women in such countries. It is not that alimony (also known as spousal support) is not available abroad, but it is generally seen in few cases which may involve wealthy couples or old couples who are ending long marriages.


Alimony in India is decided on the basis of income and background of the couple. In select cases, alimony paid to the wife is based on the standard of living enjoyed by the couple while married. Law on this aspect is still developing and there have been recent judgements which state that because of social changes where women are no longer dependent on their husbands or other family members, their pleas for alimony need to be looked into with all fact, and it should be ensured that one of the spouses should not be enriched at the cost of the other.


As far as the issue of division of property is concerned, the same is primarily decided on the facts of each case and for this principles of equity are used. This is required because our law is not clear on the concept of common matrimonial property. It is deemed that a property in India belongs to the person in whose name it is bought, even if it has been acquired during the course of marriage. Hence, even if a wife pays for some property and it is in the name of her husband, there is no way to prove during divorce proceedings that it rightfully belongs to her unless the wife produces evidence that she had paid for the said property.



In a divorce proceeding in USA, everything owned or owed by the couple fall into one of the following two categories: marital property or separate property. Generally, marital property is everything that the divorcees have earned or acquired during their marriage and separate property generally involves properties like those owned before marriage, gifts, properties acquired separately and never used for the benefit of each other, inheritances and property that the spouses agree in writing to keep as separate.


In most states in USA, only marital property is divided at divorce and divorcees get to keep their separate property. For this reason, what is marital property and what is separate property can become a contentious issue.


Laws of different states in USA ordinarily determine which assets are parts of marital property and which are not. However, a couple can pre-decide how they intend to divide their property in the event of a divorce through a valid prenuptial and/or postnuptial agreement.


Community property states


In general, in community property states like Texas, Arizona, Washington and California, divorcees own together almost all property that they have jointly or independently acquired during their marriage, regardless of whose name it is in. Thus in a community property state, each of the spouses own an undivided half interest in the value of their marital property / community property.


Equitable distribution states


Most other states are equitable distribution states which use the concept of "what is fair" to decide how a couple's marital property and debts should be divided between them when they get divorced.


In such states, length of the marriage of a couple is a major factor for a judge while determining how equal the distribution of property should be. The longer the marriage, the stronger the argument is for an equal division / for a division that will leave the lower-earning spouse as close to the marital standard of living as possible.


The ten year itch!


It has been seen that some celebrities in USA have been filing for their divorces just short of their 10th anniversary. For example, Tom Cruise filed for divorce from Nicole Kidman just short of a decade long union.


This is done because, in the opinion of divorce attorney's, a marriage that has lasted for 10 years may be considered a lengthy marriage, thereby increasing the chances of an equal division of matrimonial property.


Also, some prenuptial agreements between spouses substantially increase the property settlement for marriages that last at least 10 years. This also leads to filings for divorce by the spouses who stand to lose if the 10- year mark is crossed.


As such matters involve very high stakes, we can safely say that celebrities and the beau monde pave the way for explicated and complex divorce rules and rulings.




The division of property on divorce in England is governed by the Matrimonial Causes Act 1973. Under this Act, courts have a wide discretion and there are no hard and fast rules regarding a spouse's financial rights in matrimonial property.


Courts in England divide matrimonial property keeping in mind the concept of equality and look into the needs of the spouses. Similar to the legal position in India, there is no set formula or certainty about what a court may order. However, the courts do take certain facts into consideration in such matters which include the income, financial resources and needs, obligations and responsibilities, the standard of living and length of the marriage.


Also, courts in England begin with presumption of division of matrimonial assets in a 50:50 proportion and then apply other principles for further interpretation. This position has developed in the English courts over a period of time, without any law being passed to this effect.


This has indeed led to heavy matrimonial asset settlements in England in recent times, including Madonna and Guy Ritchie and Paul McCartney and Heather Mills. It may also simultaneously be argued that the prevalence of such high profile cases has created the presumption of 50:50 divisions of matrimonial assets in the first place. Interestingly, it is being asserted now that London has become the divorce capital of Europe.




In France, marital regime (regime matrimonial) has high importance. Marital regime is the set of rules, established by law and chosen by the couple, that structures the financial aspects of the couple's relationship during the marriage and when the marriage comes to an end.


A couple may choose a marital regime by signing a prenuptial agreement at the office of a notary (who are public officials specialised in family law) before their marriage.


In this, the couples can choose (a) a system of communal ownership (to combine their assets and debts), or (b) a system of separate estates (if they wish to maintain their independence), or (c) a system where only the assets acquired within the marriage shall be shared upon divorce.


If the couple decides not to sign a prenuptial agreement, the property acquired by them within the marriage is considered to be jointly held.


In case of a divorce, the rules contained in the marital regime are used for division of assets. Further, if one partner is found to be completely at fault in a divorce, the other partner is allowed a compensation for failed marriage.


All in all, French laws are considered very clear as far as division of property at divorce goes.




While we have seen the tip of the iceberg in this article, there are numerous nuances of law relating to alimony and division of property in cases of divorce, which vary from country to country.


Be that as it may, a panoramic view of the subject at hand does bring out the following facts: (a) Laws of equity govern alimony and division of property in all of the above jurisdictions, and (b) Rights of divorcees are as evolved as the societal structure is.


The maxim that necessity is the mother of invention holds true here as well, and while one may argue for or against divorce, it is certain that if India faces more divorces in the coming years (and if they involve a right mix of high profile cases as well),the time is not far when the law here will evolve to allow a better sharing of matrimonial property between divorcees.



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