Family Law in South Asian Context 1 On the Division of Matrimonial Property: Family law in South Asian Context* A Paper

read at the Socio-Legal Studies Conference University of Wales, Cardiff April 2-4, 1997 by Sushil Jain Introduction If law is an 'autonomous' legal system, then we subscribe to the theory that law is "independent of society's other mechanisms of social control", and that it is "selflegitimating".1 But it would, perhaps, be too simplistic to think that outside factors -- social, political, religious, ethical, as well as custom and tradition -- do not influence the legal system of a locality. They do. For example, religious customs and traditions of immigrant communities (i.e., new citizens) begin to be recognised (judicially) by the hosts (immigrant-receiving countries) in due course of time. In this regard the case of Sikhs (more correctly the Khalsa Sikhs2) offers us an excellent example. Gone are the days when the simple action of wearing a turban by a bus driver would bring the public transport of a whole city to a standstill.3 Slowly and steadily the dress code and religious uniform of a minority community has been accepted by the public and state institutions.4 Legal systems may be culture bound but they do change in due course of time as new social forces take hold, new life-styles develop, or religious and ethnic composition of a particular locality changes with time. Contemporary liberal democracies can no longer ignore the religious customs and traditions, and personal or folk laws of the immigrant communities amongst them. There "are good independent reasons why cultural differences should, subject to certain limits, be accepted".5
1

Richard Lempert and Joseph Sanders, An Invitation to Law and Social Science, New York: Longman, 1986, pp. 402-403. 2 See, for further discussion on this matter, Sushil Jain, "Sikh or Khalsa: The question of identity or definition," Canadian Ethnic Studies, 22/2 (1990), 111-116. 3 See, David Beetham, Transport and turbans: A comparative study in local politics. Oxford: Oxford University Press for Institute of Race Relations, 1970. 4 See, unpublished paper, Sushil Jain, "Sikhs and the law: Judicial recognition of their religious customs and traditions in Britain and Canada" presented at the Law and Society Association, and Research Committee on the Sociology of Law of the International Sociological Association Joint Meeting, University of Strathclyde, Glasgow, 10-13 July, 1996. 5 Andrew Bainham, "Family law in a pluralistic society," Journal of Law and Society, 22/2 (June 1995), 234-247, @ p. 238.

. England and Wales which do not allocate property at marriage breakdown on a strict equal division. Toronto. "English family law and ethnic laws in Britain.6 Though it has become fashionable to state with some pride that countries like the United Kingdom7 and Canada have been multicultural for a long time. p. 11 Financial and Property Aspects of Divorce under English Law are much different than those available under Canadian law. the Netherlands. has argued that there is "considerable scope for accommodating a plurality of views about the family and family life styles" and that "the law should accommodate the family practices of cultural and religious minorities" in Journal of Law and Society. there is no legal definition of family assets in England and Wales. or rather the registrar. Reclaiming Our Pasts: Equality and diversity in the primary history curriculum. 83. In fact few immigrant minorities are making any 'conscious' efforts to 'do as the Romans do'. the form or pattern of family as practised in diasporic South Asian communities. for example. Therefore. Report on Family Law: Matrimonia Property. Ontario Law Reform Commission. 1986. e. p. Canadian Human Rights Act. France. 1993. has much discretion in allocating "proportions either for maintenance or for a division of the capital assets" (Sebastian Poulter. Report on Family Property Law. has not kept pace with changing conditions9 notwithstanding the fact that several law reform commissions10 have made numerous recommendations over the past decade to harmonise family law with the changing circumstances of newly developing family forms and patterns of life-styles in the country. Germany. 234. for example. more particularly since World War II. obligations and responsibilities" (ibid." The Windsor Star. London: HMSO. earning capacity. viz.g. Part II. especially in the area of family matters vis-a-vis ethnic minorities. London: Butterworths. 10 Law Commission. 1986. In recognition of racial and ethnic minorities present in their midst. 238. Hilary Claire. that the religious. 128) though under the Matrimonial and Family Proceedings Act 1984 the court is obliged to consider "all the circumstances of the case including a large number of listed factors such as the parties' resources. the dilemma faced by a divorcing couple 6 Werner Menski.. but the law. 22(2) June 1995 @ pp. English Law and Ethnic Minority Customs.members of the Newly Developing Multicultural Countries Club -. Such is not the case in some other jurisdictions. 1 (1988) 64.Few people nowadays would agrue publicly that 'new citizens' should conform to the native norms and integrate with the local populations.has changed dramatically in a very short span of time. The powers of the English courts re. Trentham Books. property and provisions are to be found in The Matrimonial Causes Act 1973. "Newcomers will impose [their] will on natives -again." Kerala Law Times. Sushil Jain. in reality it is only recently. etc. . 13 April 1989. Britain. etc. The judge. 7 See. and the impact such a form of family pattern can have on family matters especially at marriage breakdown when family assets (or values thereof) are to be divided 'equally' as is the case in Canada.). diversity is the new buzz word. "They have become the Romans". This paper deals with a very specific situation. See also. racial and ethnic mixture of countries like Canada. Australia and the United States of America -. 8 Race Relations Act. the national and local governments of both United Kingdom and Canada have passed several race relations8 and antidiscrimination laws to outlaw discrimination based on race.11 In fact. 9 Andrew Bainham. 1994.

Carolyn Hamilton. can have different meanings in different cultural contexts. [1980] 1 WLR 355) touching on the issue of financial and property aspects of divorce amonst the non-Christian communities. A related work on the Jews and family law is: G. e. London: Tavistock. marriage. 32-63). English Law and Ethnic Minority Customs. "Legal pluralism in the Hindu marriage". Sebastian M. However. and English and Canadian lawyers will have to pay more attention to the religion. Religion and the Jewish Community. 1986. pp. 14 The only person of some authority to write on this subject is: Menski. will become increasingly important as the number of ethnic minorities and divorces in these communities increase with time. London: Butterworths. and Khan v Khan [1980] 1 All ER 497. Law and Society: Cases and Materials. pp. Poulter mentions only two cases Brett v Brett [1969] 1 All ER 1007. In: Burghart. 1987. . 1987. and David Pearl. there being none involving a Hindu couple. Brenda M. London: Butterworths. see also his "English family law and ethnic laws in Britain. David Pearl. April 1972.g. joint or extended South Asian family). 1983 (now revised). 1986. Rights and Laws. 64-129) of Hoggett. The Family. the only work of some significance is that of John Tibor Syrtash. Though several authors13 have already written on the issue of ethnic minorities and law. Religion and Culture in Canadian Family Law. 15 Some notable authors and their publications on this issue are: Tony Bradney. Words such as family." in Kerala Law Times. Bristol: Jordan & Son. pp. "Muslim marriages in English law". 73-82. Richar (ed. 120-143.15 Some Definitions and Clarifications 12 The English case law on the subject. Werner F. 1995. 1988(1). especially the Hindu community. Leicester: Leicester University Press. etc. in Western environment. be regarded as a legitimate 'target' for division of assets or equalization of family property at marriage breakdown? The issues raised here have cultural overtones. in the Canadian context.12 The issue that is being raised in this paper is: How do we grant broader recognition to the financial and material contributions a working wife makes to the household in a joint family situation than what has hitherto been granted? In other words. Law and Religion. Religion. in both cases. and see Chapter 2 (pp. English Law and Immigrant Communties. 13 Poulter. Poulter points out. etc. Family.. property division. divorce. the English courts did take into account ethnic minority customs while giving the decisions. customs and traditions of the minorities settled amidst their boundaries. Jews College. 56-66. 1992. Toronto: Butterworths. 1992.14 Family law. with respect to ethnic minorities. Cambridge Law Journal 39(1). how can the wider family (united.Family Law in South Asian Context 3 in Canada is different from their counterparts in England and Wales. is very limited. London: Sweet & Maxwell.) Hinduism in Great Britain: The Perpetuation of Religion in an Alien Cultural Milieu. in my opinion. Sellickm's The Law. in diasporic South Asian communities. woman's property. culture. I believe insignificant attention has been paid to the issues resulting from marriage. Chapter 3 (Family economics-income) and Chapter 4 (pp. David Pearl is another authority but his attention has been more to Islam.

36-42. father.. and facts and circumstances of each case". p. 19 ibid. The answer to such a question would be difficult to give when there is so much variety and diversity of family life-styles. As the geographical setting. . 20 Ishwaran. Toronto: Holt. See. purpose intended to be accomplished by its use. mother and their children.20 Though the meaning of the word 'family'. 21 'The term "family" does not have a precise legal definition' and that '[t]he term "family" cannot be exactly defined'. Canada is much too heterogeneous to have one or two or twenty distinctive family types. We will then describe and discuss the 'peculiar' pattern of family life-style that is practised in some Asian communities. also The International Covenant on Civil and Political Rights. discussion in Katherine O'Donnovan's Family Law Matters. 1968. Payne and Payne. The Family in Canada. ethnic. 1993.18 Though Canada has been continually populated by a variety of ethnic groups from many parts of the world for a long time. so do our families. In other words. 1.3. in the first ever book of readings on Canadian family. p. "Family Forms". immediate kindred. the author lamented that there are "surprising few studies of ethnic groups which focus on families".. (Ed. religious.) The Canadian Family: A Book of Readings. Chapter 3.19 Writing a little more than a decade later. and as the social class. 52. Art. K. the term 'family' "[m]ost commonly refers to group of persons consisting of parents and children. 18 Elkin. 1993. Family in Canada In a premier book on family published by a premier institute on family in Canada. but more particularly in the province of Ontario. Toronto: McGraw-Hill. Fredrick. followed by a discussion of its impact on family law matters as they may relate to the situation in Canada. family can be defined as a 16 17 Article 16. constituting fundamental social unit in civilised society". Montreal: The Vanier Institute of Family. recorded that though "a considerable body of empirical data relevant to such studies has been accumulating over the past decade .. 31. the editor.Let us first look at the term 'family' and the concept of 'family' as currently available in official and academic circles since it is a family matter that we are discussing in this paper.21 "depends on field of law in which word is used. 1971. p. 23. Rinehart. Family The Universal Declaration of Human Rights proclaims that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State" 16 but it fails to state what kind of family must be protected and from whom. Iswaran. significant sociological studies on families in Canada cannot at present be counted in two figures". Dealing with Family Law: A Canadian Guide. Ryerson. occupational and other groupings vary. including certain family life-styles17 that may be in conflict with the established laws and norms of a given society at a given time. pp. With its distinctive geography and history. the author stated: There is no one Canadian family. K. Pluto Press.

particularly South Asia with which this writer is quite familiar with. wife. usually those of the wife. 1. 1986. 1987.25 The concept of joint family is nothing new to Asian immigrants. a mirror image of the family pattern existing in their home countries where.27 22 23 Black's Law Dictionar. New York: Praeger.e. The extended family is a common feature of many South Asian families in the diaspora. Hindu Undivided Family: Law. irrespective of their religious affiliations. 1. Qureshi. . conducted in the mid-70s. 12-18.Family Law in South Asian Context 5 "collective body of persons who live in one house and under one head or management". 27 Hindu Law. 36. in fact a great proportion of families in Asia. is quite prevalent in some ancient cultures. 1956.. op. pp. many families living together as one. p. and their children are joined by the in-laws. live in united or joint families. where the husband. 1960. p. London. family form in Pakistan is alsothat of a joint family.S. 25 Poulter. indicated that "as many as one-third of (immigrant) households were of the extended family type compared with two-third of the nuclear type". 1983.24 An earlier survey.22 Thus "a group of persons related to each other by marriage or blood (or otherwise) living together under a single roof and comprising a household whose head is usually the father or husband" is family. Eglar. cit. 67. see also O'Donovan. 1830. a majority of families "live under extended or joint family system. The Pakistan's Way of Life. connected in blood.26 Writing more than a century and a half ago. i. Z. the term family can also described as extended or joint family. I. Sir Thomas Strange observed: [the] Hindus are a patriarchal people. vide Poulter. "but the word is not one of inflexible meaning and its significance to a large extent depends upon the context and the purpose for which it is employed". and united in interest . usually spanning three generations".. cited by Upesh Singh Sachdeva. Whereas this form of family pattern. who living under the same roof. St. in his classic book on Hindu law.. sharing one kitchen and partaking from the common cooked food. A Labour Force Survey conducted in England in 1981 "revealed that some 28% of Asian households contained three or more adults together with one or more children". p. vol. Paul.23 In the context in which this paper is set. Delhi: UDH Publishers. op. New York: Columbia. p. ibid. A Punjabi Village in Pakistan. and participating in common worship.. it is only recently that it has gained some recognition in Newly Developing Multicultural Countries. p. English Law and Ethnic Minority Customs. 24 Social Trends . see. 181. Judiciary and Banks. 13. comprise family. in the sense most South Asian families are. H. vol. @ p. 26 ibid. 67. 311.. cit. The paradigm of united family is fully ingrained in the local laws and customs of India. joint family.

the bride not only joins her husband. or an economic partnership between two persons. op.e..(personal communication) -. status. some men and women have cohabited. whose parents often live with the married couple. it is not only the prospective bride and groom who are considered but also the nature. where parents of either spouse have come to join their married son or daughter in Canada. 'heterosexual' or 'married' family where a man and woman formed the family unit (with their children.29 However. a family joint in worship and food. because she has spent a larger portion of income on third parties .28 After marriage. 'living in sin'.. On the Concept of Marriage in Indian context The traditional concept of marriage in India is much different than it is commonly understood in the West -.i. i. . Kaur Some authors have argued that this sort of idealized family "may never have existed" (p. either the bride or groom have been forced to marry someone whom they had not known or seen before the day of marriage.When a marriage of a young man or woman is contemplated in a South Asian household.. without getting married. i. until recently. the Court has been asked to annul the marriage but without success. a love-marriage between two people who are united together in a church or civil ceremony to form a nuclear family for the purpose of companionship and/or procreation . i. This type of paradigm is in stark contrast to the western model of family which. considered to be forming a family unit but lacking the protection and benefits of law as husband and wife in case of a break-up..as many as 8090% of the Indian families. The earnings of the family members may be put in a joint account from which are paid the mortgage and general household costs.. In other jurisdictions marriage may be a contract. Such a union is commonly referred to in the western media as an 'arranged marriage' though by law two young people cannot be forced to marry against their wishes. but also the family of her husband. O'Donovan.e. on the other hand. has been described as the 'nuclear'. 28 29 Singh v.e. According to a Canadian informant who works with South Asian families regularly -. The family thus is not nuclear but joint. cit. in most rural areas and some urban neighbourhoods. Indian marriage. and caste of the families they come from. If the woman is gainfully employed she will of course be contributing a larger share of her income to support her husband's family since it is her husband's family (parents or siblings) who are staying in her matrimonial home. p. wealth. 30. are joint or extended families . or having been declared husband and wife in a civil ceremony. As such she may be financially much disadvantaged at marriage breakdown.The family life-style of South Asians living in Britain and Canada is not much different from the pattern of family prevailing in India.e. in a jurisdiction which allows for equalization of family property. if any) after having been 'joined in holy matrimony' in a church ceremony. Where such a marriage has taken place. until recently. is not an economic or equal partnership between two people but an association between two families. 30) except "for only a brief period in the mid twentieth century".

Calgary. [Vancouver]. 1993. Toronto. Canadian Research Institute for Law and the Family [Diane Pask et al]. the social acceptance of cohabitation relationships as a family form.. The concept of diversity of family life-styles has also been accepted by almost all family law reform commissions from Nova Scotia to British Columbia. Lesbian and homosexual couples have been granted judicial recognition as 'married couples' by Canadian courts as far as medical and social benefits. Toronto. 1996.Family Law in South Asian Context 7 Other forms of families. Under pressure from various feminist and other SIGs. have continued to develop in western countries. p. the increasing number of children born outside marriage.g.. B. i. 31 Nova Scotia [W. . Charles].recognise a diversity of family forms.32 The Ontario Law Reform Commission also admitted that "[t]he most profound change is the increasing diversity of family forms in which individuals choose to live". same-sex couples and single (married or unmarried) mothers raising their own or adopted children as family units. 32 ibid. and division of property at marriage breakdown is concerned. In fact school teachers when asked to teach a unit on 'Family' are advised by the curriculum writers to ensure that all types and forms of 'alternative' family styles are included in their lesson plans.33 30 Alberta. e. 33 Ontario. Ontario Law Reform Commission. Report of Family Law. Books for children no longer accept the married man and woman (papa and mama) with their biological children as the only model of 'standard' family. has been necessitated by "the fact that divorce is increasingly prevalent as are second and third family units. Questions and Answers about Pension Division on Marriage Breakdown. 1996. Matrimonial Property in Nova Scotia: Suggestions for a New Family Law Act: Discussion Paper. same-sex couples. xiv.. 1993. Law Reform Commission. Recognising Diversity of Family Forms That the Canadian family (or the concept thereof) is changing and has changed in the last quarter of a century is now an acknowledged fact. say the Commissioners. How Much and Why? Economic Implications of Marriage Breakdown: Spousal and Child Support. and the increasing recognition of same sex cohabiting couples both socially and legally". a report from Nova Scotia states: The Matrimonial Property Act should be replaced by a new Family Law Act which should reflect the following values: . publishers of children books have issued books that describe alternative families made up of unmarried men and women cohabiting together. p. . 1989. Halifax. Report on Family Property Law.30 For example. though in some jurisdictions such 'marriages' are still a point of controversy.affirm the role of families (not family) as fundamental units of society.31 This.C.

she may have supported the whole enterprise herself. In a situation like this the Canadian Asian woman has very little hard cash or savings to show in her own account. which is quite prevalent in some immigrant populations..e. the diversity that almost all law reform commissions are talking about is onesided diversity. In the meanwhile the couple sponsors the husband's parents and their under-age children who gain entry into Canada under the government's family reunion policies (even when most of the husband's siblings are in India). While earning a living in their own right. while moneys earned by her inlaws are theirs to keep. acquires prestigious belongings to show newly achieved status but the Indian husband gets fired. joint or extended family. making herself much poorer in the process (i. may baby sit their grand-children in lieu of making a direct payment to their son or daughter-in-law for boarding and lodging. either born or educated in Canada. living in a joint family situation. She marries in India. most older folks continue to live with the married child (usually the son) but rarely contribute proportionally to the household expenses. Hypothetical Case Let's say an Asian Indian girl. supports her husband during his adjustment phase in Canada. Since little consideration has been offered to such a form of family life-style in the above mentioned and other law commission reports and discussion papers. and sponsors her Indian husband.e.. but the total family income has risen manifold. thus making the Canadian Asian girl to contribute a high proportion of her earnings to the total household expenses. however. helps put him through college or additional qualifications. however. or leaves his job because it is below his qualifications. Most older folks who have come to join their children overseas do not work due to their advanced age or because of the nature of jobs available. had she not lived in a joint family situation) while her husband's and his parents wealth continues to grow from zero to thousands. diversity as viewed by Eurocentric commissioners or report writers who have conveniently neglected a very special type of family form. goes or is sent to India to get married due to family pressure or by tradition. The extended family moves into a bigger and more sumptuous home.e. In fact. The girl is employed. and finally he finds a job. . do find gainful employment. we present here a hypothetical case that may highlight a possible problem that I envisage for a working Asian Indian woman. some older Indian men (and a few Indian women). It is also not very uncommon for some Indian men to open an NRI34 account with an Indian bank where certain funds can be transferred either in his or his and a relative's name to earn substantial interest income in India which would be insulated from inclusion in matrimonial assets in case of a divorce since final statement for such funds 34 Non-Resident Indian [i.However. overseas Indians who have adopted the citizenship of other countries]. at marriage breakdown. Some old folks. who joins her in due time. She is the sole provider of her extended family's household expenses. i..

9. but first allow me to explain the Canadian situation re.. can be called in to play thier role in family law matters in a province (in this case Nova Scotia). Family Maintenance Act (R. over age 65. rules for the division of spousal (family) property at marriage breakdown vary from province to province. Upon proclamation of this Act (on June 1. from the Federal Government by all people who have lived in Canada for at least ten year. rifts develop between the Canadian Asian girl and her Indian husband who refuses to do. 1970 was repealed.40 is the way family assets are calculated at marriage breakdown. They may also encouraging their son's divorce action since he can still return to India and get married again ('foreign' Indian is still valued since he can sponsor his fiancee or wife to Canada).39 Though rules for divorce are uniform all over the country. There is a division of powers between the provincial/territorial governments and the federal government.S. I will point them out as we go along. Now let's say. In addition. Unlike Ontario and most other provinces.N.S. 30. 1980 (S. 1985. 275). e. Family Law Canada is a federation comprising ten provinces and two territories which have their own provincial and territorial governments. doing the laundry or ironing) because they are below his dignity. c. (Nova Scotia) Matrimonial Property Act. have accumulated tens of thousands of dollars in OAS35 and other government benefits36 while contributing a negligible amount to the household expenses. 1989. This is so delineated in the British North America Act. c.S. 2 (2nd Suppl). R.C. the husband's parents. Nova Scotia includes "all property owned on the day of marriage as sharable 35 Old Age Security which can be collected. 160).P. etc. now R. 37 Now called the Constitution Act 38 Divorce Act 1985.. who have resided with their married son and his daughter. For example. the federal government is responsible for divorce laws38 whereas matters concerning division of matrimonial assets (or values thereof) at marriage breakdown are left to the provinces. 1986). after a few years. p. In the meanwhile.Family Law in South Asian Context 9 cannot be easily traced. the Divorce Act. any household chores (washing the dishes.S. 39 For example: (Ontario) Family Law Act. 1867.g.P.37 In family law matters. 1986. April 1996. Several issues that come to my mind. where only family assets acquired after marriage are to be included in the valuation of Net Family Property (NFP) of each spouse.. Canadian Legal Structure re. hanging on to his Indian mentality. may also be able to collect C. unique to Nova Scotia.N. 40 See. 36 Certain people. 1989. c. Law Reform Commission of Nova Scotia. . (Canada Pension). severval other statutes. Discussion Paper: Matrimonial Property in Nova Scotia: Suggestions for a new Family Law Act. on a sliding scale.S.N. Having come to know that Canadian law allows him to get one half of the family assets (to which may have contributed disproportional little) he files for a divorce.S. family law. c.

Hence. Reformers of this clause. if the donor or testator has expressly stated that it is to be excluded from the spouse's net family property. present or future. 36). However. 44 Family Law Act. e. and (c) in the case of a spouse's rights under a pension plan that have vested.e. that are payable on the death of the life insured. cit. Proceeds or a right to proceeds of a policy of life insurance as defined in the Insurance Act. 41 42 ibid. a power to revoke the disposition or a power to consume or dispose of the property. into which property referred to in paragraphs 1 to 4 can be traced. and some other property.e. 50-50. (i) as of the date of marriage. are excluded from sharable assets at marriage breakdown in the province of Nova Scotia. (b) the deductions that the party claims under the definition of "net family property". a power of appointment exercisable in favour of himself or herself. s.44 i. i.. any: (a) property over which a spouse has. 4. . inheritances. trusts or settlements received by one spouse from a person other than the spouse [are exempt property] except to the extent to which they are used for the benefit of both spouses or their children".43 In the province of Ontario. gifts and inheritances. 5.: 1. vested or contingent. Property. e.assets"41 to be divided equitably. (b) property disposed of by a spouse but over which the spouse has. and (iii) as of the date of the statement.g. 43 The Act states: "gifts. alone or in conjunction with another person. op.42 However. 4 (Definitions). 6. 2. that was acquired by gift or inheritance from a third person after the date of the marriage. certain properties are excluded from a spouse's net family property. personal property other than land. or the part of a settlement that represents these damages. when a petition is filed for separation or divorce both spouses are required by law to file with the Court. other than a matrimonial home. alone or in conjunction with another person.. 3. the spouse's interest in the plan including contributions made by other persons. Discussion Paper. have argued "that such assets should no longer be exempt" (N. Property that the spouses have agreed by a domestic contract is not be included in the spouse's net family property. other than a matrimonial home. The division of family or matrimonial property (or values thereof) does not have to be equal. in real or personal property". Property.S.. nervous shock. p. though the premise behind the equal division of family propoerty is that both spouses have made an equal contribution to the marriage. care and companionship. certain assets such as business. Income from property referred to in paragraph 1. 1986. however. mental distress or loss of guidance. Damages or a right to damages for personal injuries. (ii) as of the valuation date.g. a declaration of: (a) the party's property and debts and other liabilities. under oath. property is defined as "any interest..

A difficult spouse can make simple matters difficult if he/she insists on including everything in the household. a few cases do end up in the Court. soaps and toiletries.are settled out of court through attorneys negotiating. and not to be taken into consideration while preparing NFP statement. betrothal or engagement ring(s). are a spouse's personal property. held by the parties and their children. Though a fair market of household items like furniture and furnishings can be obtained from auctioneers and experienced professionals in the field but it can be time-consuming and expensive at a time when funds are limited and neither of the spouses want to spend any money on obtaining such estimates. like clothing and things used by a spouse. -. including salt and pepper shakers. private ordering or under the law.as family property 45 46 F. On the Division of Family Property A major asset of most couples is the family home. About Woman's Jewellery Of particular interest to a legal practitioner involved in a South Asian divorce is the woman's jewellery. woman's apparel and jewellery. and other wedding gifts such as silverware.Family Law in South Asian Context 11 (c) the exclusions that the party claims under subsection 4(2). A problem can occur at marriage breakdown if the male spouse insists on including and dividing his wife's jewellery -. Registered Retirement Savings Plan similar to PEP in Britain.L. If divorces were meant to be simpler and easier to obtain without (excessive) litigation it has not happened so.. and (d) all property that the party disposed of during the two years immediately preceding the making of the statement. such as company pension or private RRSP46 is much more difficult and expensive since actuarial estimates may be required if the parties cannot reach an out-of-court settlement. etc. it is generally agreed (in most amiable divorces) that personal effects. whichever period is shorter. Though a great proportion of 'no fault' divorces -. The value of other assets.45 The purpose of obtaining these statements is to allow the Court to facilitate the equalization of net family properties so that "the spouse whose net family property is the lesser of the two net family properties is entitled to one-helf of the difference between them".as many as 95% of the cases -. but in practice it is not so easy obtain full and fair value of all marital property without some trouble and cost. s. .A. 8. But it is not always so. or during the marriage. children's belongings and whatnot as matrimonial assets countable and divisible at marriage breakdown. However. This is all well and good in theory.wedding bands. Its value is easily ascertained by obtaining a comparative market value from a professional appraiser at some cost. Technically a spouse is in his/her right to demand valuation of everything in the household.

the law as it stands in Ontario and most other provinces is a bit vague and unsure on this issue. 49 Vishnu. when marriage between the principal partners breaks down. the older folks would usually be living in their son's (or daughter's) house and his/her spouse. or when the family is in dire straits. cannot be shared by the coparencers. and she. 376. Since the husband's parents have been living the married couple.. The author is of the opinion that the Matrimonial Property Act be amended to reflect the immigrant community customs and traditions to keep up with the times. the grand-children will no longer have the care and company of grand-parents who will have to acquire separate accommodations or live with their son without his wife or vice versa. e. a part of her dowry and property. Ghose. Responsibility of Grandparents and Third Parties Living in a Joint Household at Marriage Breakdown of Principal Partners When a family is joint. and she only. South Asian custom and tradition is not so silent. except in cases of distress. has the right over such property which she cannot be deprived of without serious consequences. For example. p. However. stories or histories of pre-historic periods. 328ff. But overseas. The Principles of Hindu Law. or if she volunteers it herself. and wealth (which she may have received from her relations)". items given as gifts of affection (pritidatta).47 Personal property of a wife "consists of her ornaments. and property obtained as Stridhana. chapter on "Stridhana". XVII. or if the family's honour is in question. technically called Stridhanam. As such they shall remain her property. Such a situation would of course not occur in India where the daughter-in-law would usually be the one who will be 'kicked out' of the ancestral home. op. united in mess and worship. 22. Severe punishment is due for taking or stealing a woman's wealth. pp. 1. see Section IV. living under a single roof. say for 10-20 years. . it is not only they but also other members of the family who suffer.g. a variety of benefits (and of course tensions) accrue to all members of the joint family. the situation is reversed. vide Ghose.whose valuation must be included in the wife's NFP. woman's gold jewellery and ornaments are considered gifts to a woman. How will a judge decide in this matter? What will a judge say if the woman says that her divorcing husband must return the value of all gifts and dowry that her parent's had given to the groom and his family at her marriage? Anglo-American case law is silent on this issue. excluded from inclusion from her NFP. In the hypothetical situation detailed earlier in this paper. However. However. Even Then the woman's property can be taken only with her permission. 48 Loosely described as: ancient law texts. we might wish to consider the situation of man's parents who have been living with their son and his wife. danger. Hindu law is quite clear as to what forms a woman's property. 47 This concept is discussed in most books on Hindu law. vol. cit. A text of the Puranas 48 (paraphrased here) says: The wife is [the] mistress of wealth obtained by her marriage. the later having supported them for most of her married life.49 According to Hindu custom and tradition.

then surely the wider family (members of the joint family. The divorcing wife's husband in this case is unable to make any child support payments (presumably he is unemployed) but his parents are financially independent. Apart from this is the possibility of invoking the concept of undue enrichment which has been visited by the Canadian high court in more than one instance in cases of marital breakdown. living with the married couple in the same household. was in fact being held in trust for her and her family. and having been supported by the couple during earlier times) could be regarded as a legitimate target in calculating the assets of one or the other spouse. of contructive trust and undue enrichment.. . the woman in this case may have another avenue open for her to consider. i. In this case. but a case is currently proceeding through Ontario courts which might be of some relevance here. It is also possible that the woman may be thinking that the moneys that they were saving by not paying any boarding or lodging expenses. and that she had hoped that they would pass on their estate at their death to their son or grandchildren. but have certainly cost one of the spouses (in this case. Hence the wife has suffered significant depletion of her financial resources to support two extra adults who have in the meanwhile. the wife) substantial expenses for boarding and lodging them for such a long period of time. If the woman in this case prevails. If it can be shown that the woman have served her in-laws in the hope that she had indeed treated them as her parents during her matrimonial life from whom she expected and received counsel in happy and difficult times. during their stay with the married couple. cumulated significant savings through employment and government benefits. But. are there any legal grounds or precedents to add their assets to the husband's NFP to equalize the net worth of the divorcing couple? Unfortunately there is no reported case on this subject as far as I know. The question being asked here is this: Since the older folks are members of the husband's family. a daughter-in-law is suing her parents-in-law for child support since they had previously shown filial interest in the grandchild. and the old folks had been a part of the (joint) family.e.Family Law in South Asian Context 13 during which time they have made little financial contribution to the family's household expenses.

g. I have to some satisfaction brought an issue to your attention that may be of some significance in family law cases as English law moves towards accepting the division of matrimonial property at marriage break-down. If an argument for unjust enrichment can be made in such a case is yet to be seen._ Sorochan v.costly both emotionally as well as financially. For example. Since the number of South Asians living in Britain and Canada is significant. There are so many ifs and buts as far as the hypothetical case is concerned. instead of complicating matters. In deed the whole household contents need not be valued at tremendous cost and conflict. viz. items of personal nature. Becker. children∋s effects. Sorochan_ and Peter v._ The other argument being made is regarding the inclusive nature of the definition of Φ matrimonial property. Murdoch v. It would make sense if the legislation. Beblow. It is suggested that law-makers and others involved in policy making decisions re. However. Murdoch. Inclusive nature of property is one thing that can be simplified. that the South Asian married working female in a joint family situation may have spent disproportional amount of money from her earnings to support her husband's family. They should be divided between the divorcing couples. the groom can argue that all jewellery whether given by him or his family and by the woman∋s relatives be valued and included in the NFP. amendments to matrimonial property may wish to consider the arguments made in this paper.Conclusion The effort made in this paper is far from satisfactory and the case has not been laid to rest conslusively. . What I have tried to relate here that break-down of marriage of a South Asian woman living in a joint family does raise a number of issues that have hitherto not been discussed. but such an argument has already been made in cases relating to common law spouses at the high court level in. e._ Pettkus v. Any divorce is a traumatic experience -. and things mainly used by a single spouse need not be included.. and that at marriage breakdown she should be appropriately compensated for her efforts. This can complicate already complicated matters. I believe. Whereas the woman can say I want all my dowry or marriage gifts given to the bridegroom and his family be returned. even though the divorce rate in this community may not be as high as in the host community. can become a bone of contention. jewellery and other items of dowry. divorce does still occur in this community. In the context of the South Asian couple. perhaps in the next century as is perhaps the indication given by certain news report on the matter of division of pension funds_ at divorce in England and Wales. would rather try to simplify divorce procedures that would not cause so much drain on the parties.

or into a family? 3. even in the English discretionary system where contribution to the ∋family∋ is allowed to be taken into account? Published in the Punjab University Law Review vol. What does marriage mean? Does a person marry a person. 44 (2002) 16-35 . How. in western society. Would this broader recognition of the contribution the wife makes to the household. than has hitherto been granted. How can the financial position of a working married woman living in a joint family situation with her husband∋s parent be protected or enhanced in a jurisdiction which allows for equal distribution of family assets at marriage breakdown? 2. could the wider family be regarded as a legitimate ‘target∋ for division of assets? 4.Family Law in South Asian Context 15 Questions seeking Answers 1.

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