Property issues international divorce laws
meg
(Querist) 21 May 2014
This query is : Resolved
Hello;
I am an indian Married to an Australian citizen for the last 3 to 4 months.
The basic scenario:
I a few assets recently acquired. Some in joint name with my mum and i house in joint name and bank fds and all with nominee my daughter. My name is the same and have not changed it post marriage. Its just a certificate nothing much has changed. We both handle our own finances and issues.
I do not work here yet as i am on a spouse bridging visa here.
Him he works as a trainer and a coordinator for a culinary institute and half his sal comes in cash and half is paid,. ( i suppose indians manage to do such things here ) .
He recently took up a house (worth 400,000$) on loan and his big car is on loan too.
So I have some questions.
1. If i choose to suddenly walk off the marriage (as i have seen some colors change in him).. and leave australia and go back to my country. I understand i still get divorced as there is a rule in aus that if u are separated for a year it doesnt matter who wants the divorce or who doesn't, u get a divorce any way.
But what i am worried about is whether Will he have any right on my property acquired before marriage. most of it alimony money.
With nominee being my daughter in all of it.
I have a single house recently bought in both our joint name mum and mine.
2. He claims that he can show all of this in debt and that i or any one cannot claim anything. and will get only debt from him.
He claims that all can be hidden. Can he do that?
WEll its pure knowledge that he stays in a house and has a car and owns that house. So cant the court order a division of that?
(this is only for my knowledge, i do not plan to claim any thing )
3. How can i further protect my assets in the absence of a pre nup and without a post nup.
as all is in our respective names and i do not earn at all right now.
my money comes from my brother.
4. If we plan to do a BFA whats involved in it. ( a binding financial agreeement)
do i have to disclose all my assets how is the best way to do that?
5. What are the other things i can do to increase my and my little ones safety and make him more liable for any misbehaviour from his endd or even if he is planning to lay his greedy hands on my assets.
thank you
ajay sethi
(Expert) 21 May 2014
1) you can divorce your husband if you so desire . your husband wont have any rights on your property bought before marriage
2) if he has taken loan for buying hose and car you that implies he has capacity to repay the loan . you would get right to stay in said house not share in the house as per indian laws
3) you can execute a gift deed in favour of your mother if you so desire
4) YOU CAN IN ALTERNATIVE MAKE WILL BEQUEATHING YOUR SHARE IN YOUR ASSETS TO YOUR DAUGHTER
Devajyoti Barman
(Expert) 21 May 2014
1. If you come to India then Australian divorce laws may not apply here. Even if it apply then you have to seek the same from there only , not from India.
As per Indian laws, husband can not claim share in the wife's property.
2. If you seek maintenance from Indian courts then it will allow the same albeit he has not much property in his name.
3.If you come to India, you have nothing to bother as in accordance with the laws in India he can not claim your property.
4. BFA has no binding force in India.
5. if you come to INDIA and decides not to go back to him then never submit yourself to the jurisdiction of Australian Court by seeking divorce from their court. If you do that then in future if your husband files any case you will have to contest the same in Australian court and you may not get benefit of laws of this land which favours women.
Rajendra K Goyal
(Expert) 21 May 2014
Where and how (Hindu system, special marriage or otherwise) were you married and where your marriage registered ?
What is your citizenship and type of VISA in Australia.
Whether your citizenship has changed or is in the process?
What are the provisions of divorce in Australia?
You should consult a local lawyer there.
However, in binding financial agreement take help of a local lawyer of that country to protect your rights.
meg
(Querist) 22 May 2014
To MR. RAjendra Goyal;
I was married in Australia with a celebrant performing the ceremony and it is registered here.
My citizen ship is Indian and the type of visa i have presently is E bridging Visa. Which does not allow me work or travel.
My application for spouse visa is under way.
I am not a citizen here in aus.
Provisions for divorce in australia are :
1. To divorce the consent of both parties is not required. you must be living separately for a year and its is granted anyway.
2. to lay a claim it should be within the 12 months of the divorce or during the separation.
Thats why i am worried. If a person is bad and only wants my wealth then will he be able to apply for a divorce and then lay a claim on my wealth in this position when he is earning and i am not.
And also when my assets are out of the marital pool according to what i understand as they are in india in my name solely with nominee being my sweet little daughter and some joint holdings with my mum.
plus they are premarital. So on what plea can he claim them even if we are a year in marriage or two.
does time matter? Is it so that the more years pass by the higher the claim to your assets can be made.
plus what does he claim on. can he simply claim?
he does not have children to support he pays maintenance to his first wife for his kids.
i have a small kid.
and he has a job. two loans on a car and house prementioned 400000$ house.
so what is my safety net here.
also how late can i go and wait and watch till i decide to finally put my foot down and leave for india if the water goes above the head.
u might think why am i wanting to wait around. Well if i have married i have taken a step in some direction and if i get my TR and eventually PR which i will get in two years time we stay married. So i want to get it as well. only if i can stay back without feeling insecure about him fleecing me off my pre marital asset.
I could very well divorce him as soon as i am secure in terms of visa here.
As i see that he is not a really honest chap. But its not too bad either.
meg
(Querist) 22 May 2014
My question to MR. AJAY SETTHI;
1. YOu said i can make a gift deed towards my mom to protect my assets.
Can i do it from here. AS i am not allowed to travel out of australia during the bridging visa.
And how can one write a gift deed for assets in different formats.
One is a house. which already has her name in joint. How can i write it in her name.
some money and fds. Can i transfer them to her?
how?
And how can she then secure the fact that all these come back to me eventually.
2. YOu also mentioned that i can make a WILL that all my share in assets goes to my daughter.
I would love to in a heart beat.
But Are you saying that a will will hold strong in case of a claim against my assets from my present husband?
3. Plus can i make the will here in australia for my assets which are in india?
Or can i get my brother or someone to meet our lawyer there. and prepare a will statement and post it here in aus for me to sign. Or do i have to be present there?
Please let me know how well to go about it all without travelling and i will be more than grateful.
thank you
meg
ajay sethi
(Expert) 22 May 2014
1) you will have to come down to india to execute gift deed . it has to be duly stamped and registered .
2) you can execute gift deed in respect of your 50% share in property to your daughter
3) will takes effect on death of testator . in the event of your death your husband will not have claim on your assets if you bequeath it to your daughter .
4) will can be made by you in Australia . will does not require any registration
