Family Law in South Asian Context

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 "self-
legitimating".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See, unpublished paper, Sushil Jain, "Sikhs and the law: Judicial recognition of their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.
Few people nowadays would agrue publicly that 'new citizens' should conform to the
native norms and integrate with the local populations; diversity is the new buzz word. In
fact few immigrant minorities are making any 'conscious' efforts to 'do as the Romans
do'. "They have become the Romans".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, in reality it is only
recently, more particularly since World War II, that the religious, racial and ethnic
mixture of countries like Canada, Britain, France, Germany, the Netherlands, Australia
and the United States of America -- members of the Newly Developing Multicultural
Countries Club -- has changed dramatically in a very short span of time. In recognition of
racial and ethnic minorities present in their midst, the national and local governments of
both United Kingdom and Canada have passed several race relations8 and anti-
discrimination laws to outlaw discrimination based on race, but the law, especially in the
area of family matters vis-a-vis ethnic minorities, 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.

This paper deals with a very specific situation, viz., the form or pattern of family as
practised in diasporic South Asian communities, 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. Such is not the
case in some other jurisdictions, e.g., England and Wales which do not allocate property
at marriage breakdown on a strict equal division.11 In fact, there is no legal definition of
family assets in England and Wales. Therefore, the dilemma faced by a divorcing couple

6
Werner Menski, "English family law and ethnic laws in Britain," Kerala Law Times, 1
(1988) 64. See also, Sushil Jain, "Newcomers will impose [their] will on natives --
again," The Windsor Star, 13 April 1989.
7
See, for example, Hilary Claire, Reclaiming Our Pasts: Equality and diversity in the
primary history curriculum. Trentham Books, 1994, p. 83.
8
Race Relations Act, Canadian Human Rights Act, etc.
9
Andrew Bainham, for example, 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, 22(2) June 1995 @ pp. 234, 238.
10
Law Commission. Report on Family Law: Matrimonia Property. London: HMSO,
1986; Ontario Law Reform Commission. Report on Family Property Law. Toronto,
1993, etc.
11
Financial and Property Aspects of Divorce under English Law are much different
than those available under Canadian law. The powers of the English courts re.
property and provisions are to be found in The Matrimonial Causes Act 1973, Part II.
The judge, or rather the registrar, has much discretion in allocating "proportions
either for maintenance or for a division of the capital assets" (Sebastian Poulter,
English Law and Ethnic Minority Customs. London: Butterworths, 1986, p. 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, earning capacity, obligations and
responsibilities" (ibid.).
 Family Law in South Asian Context
3

in Canada is different from their counterparts in England and Wales.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, how can the wider family (united, joint or extended South Asian family),
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. Words such as family, marriage, woman's
property, etc. can have different meanings in different cultural contexts. Though several
authors13 have already written on the issue of ethnic minorities and law, I believe
insignificant attention has been paid to the issues resulting from marriage, divorce,
property division, etc. in diasporic South Asian communities, especially the Hindu
community.14 Family law, in my opinion, will become increasingly important as the
number of ethnic minorities and divorces in these communities increase with time, and
English and Canadian lawyers will have to pay more attention to the religion, culture,
customs and traditions of the minorities settled amidst their boundaries.15

Some Definitions and Clarifications

12
The English case law on the subject, with respect to ethnic minorities, is very
limited. Poulter mentions only two cases Brett v Brett [1969] 1 All ER 1007, and
Khan v Khan [1980] 1 All ER 497, [1980] 1 WLR 355) touching on the issue of
financial and property aspects of divorce amonst the non-Christian communities;
there being none involving a Hindu couple. However, Poulter points out, in both
cases, the English courts did take into account ethnic minority customs while giving
the decisions.
13
Poulter, Sebastian M. English Law and Ethnic Minority Customs. London:
Butterworths, 1986, pp. 73-82; and see Chapter 2 (pp. 32-63), Chapter 3 (Family
economics-income) and Chapter 4 (pp. 64-129) of Hoggett, Brenda M. and David
Pearl, The Family, Law and Society: Cases and Materials, London: Butterworths,
1983 (now revised).
14
The only person of some authority to write on this subject is: Menski, Werner F.
"Legal pluralism in the Hindu marriage", In: Burghart, Richar (ed.) Hinduism in Great
Britain: The Perpetuation of Religion in an Alien Cultural Milieu. London: Tavistock,
1987; see also his "English family law and ethnic laws in Britain," in Kerala Law
Times, 1988(1), pp. 56-66. David Pearl is another authority but his attention has
been more to Islam, e.g., "Muslim marriages in English law", Cambridge Law Journal
39(1), April 1972, pp. 120-143.
15
Some notable authors and their publications on this issue are: Tony Bradney,
Religion, Rights and Laws, Leicester: Leicester University Press, 1992; Carolyn
Hamilton, Family, Law and Religion. London: Sweet & Maxwell, 1995; David Pearl,
English Law and Immigrant Communties. Bristol: Jordan & Son, 1986; in the
Canadian context, the only work of some significance is that of John Tibor Syrtash,
Religion and Culture in Canadian Family Law. Toronto: Butterworths, 1992. A related
work on the Jews and family law is: G. Sellickm's The Law, Religion and the Jewish
Community. Jews College, 1987.
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. We will then describe and discuss the 'peculiar' pattern of family life-style that is
practised in some Asian communities, followed by a discussion of its impact on family
law matters as they may relate to the situation in Canada, but more particularly in the
province of Ontario.

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. The
answer to such a question would be difficult to give when there is so much variety and
diversity of family life-styles, including certain family life-styles17 that may be in conflict
with the established laws and norms of a given society at a given time.

Family in Canada
In a premier book on family published by a premier institute on family in Canada, the
author stated:

There is no one Canadian family. With its distinctive geography and

history, Canada is much too heterogeneous to have one or two or
twenty distinctive family types. As the geographical setting, and as
the social class, religious, ethnic, occupational and other groupings
vary, so do our families.18

Though Canada has been continually populated by a variety of ethnic groups from many
parts of the world for a long time, the author lamented that there are "surprising few
studies of ethnic groups which focus on families".19

Writing a little more than a decade later, in the first ever book of readings on Canadian
family, K. Iswaran, the editor, recorded that though "a considerable body of empirical
data relevant to such studies has been accumulating over the past decade ... significant
sociological studies on families in Canada cannot at present be counted in two figures".20

Though the meaning of the word 'family',21 "depends on field of law in which word is
used, purpose intended to be accomplished by its use, and facts and circumstances of
each case", the term 'family' "[m]ost commonly refers to group of persons consisting of
parents and children; father, mother and their children; immediate kindred, constituting
fundamental social unit in civilised society". In other words, family can be defined as a
16
Article 16.3; also The International Covenant on Civil and Political Rights, Art. 23.
17
See, discussion in Katherine O'Donnovan's Family Law Matters. Pluto Press, 1993,
Chapter 3, "Family Forms", pp. 36-42.
18
Elkin, Fredrick. The Family in Canada. Montreal: The Vanier Institute of Family,
1968, p. 31.
19
ibid., p. 52.
20
Ishwaran, K. (Ed.) The Canadian Family: A Book of Readings. Toronto: Holt,
Rinehart, 1971.
21
'The term "family" does not have a precise legal definition' and that '[t]he term
"family" cannot be exactly defined'. Payne and Payne, Dealing with Family Law: A
Canadian Guide. Toronto: McGraw-Hill, Ryerson, 1993, p. 1.
 Family Law in South Asian Context
5

"collective body of persons who live in one house and under one head or management".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, "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".23

In the context in which this paper is set, the term family can also described as extended
or joint family, in the sense most South Asian families are, where the husband, wife, and
their children are joined by the in-laws, usually those of the wife, who living under the
same roof, sharing one kitchen and partaking from the common cooked food, and
participating in common worship, comprise family.

Whereas this form of family pattern, i.e., joint family, is quite prevalent in some ancient
cultures, it is only recently that it has gained some recognition in Newly Developing
Multicultural Countries. 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".24 An earlier survey, conducted in the mid-70s, indicated that "as many as
one-third of (immigrant) households were of the extended family type compared with
two-third of the nuclear type".25

The concept of joint family is nothing new to Asian immigrants; in fact a great
proportion of families in Asia, particularly South Asia with which this writer is quite
familiar with, live in united or joint families. The paradigm of united family is fully
ingrained in the local laws and customs of India. The extended family is a common
feature of many South Asian families in the diaspora, a mirror image of the family
pattern existing in their home countries where, irrespective of their religious affiliations,
a majority of families "live under extended or joint family system, usually spanning three
generations".26

Writing more than a century and a half ago, in his classic book on Hindu law, Sir
Thomas Strange observed:

[the] Hindus are a patriarchal people, many families living together as one;
connected in blood, and united in interest ...27

22
Black's Law Dictionar, St. Paul, 1983, p. 311; see also O'Donovan, op. cit., p. 36.
23
ibid.
24
Social Trends , vol. 13, p. 181, vide Poulter, English Law and Ethnic Minority
Customs, 1986, p. 67.
25
Poulter, op. cit. p. 67.
26
ibid.; family form in Pakistan is alsothat of a joint family; see, Z.S. Eglar, A Punjabi
Village in Pakistan. New York: Columbia, 1960; I. H. Qureshi, The Pakistan's Way of
Life. New York: Praeger, 1956, pp. 12-18.
27
Hindu Law, vol. 1, London, 1830, cited by Upesh Singh Sachdeva, Hindu Undivided
Family: Law, Judiciary and Banks. Delhi: UDH Publishers, 1987, @ p. 1.
The family life-style of South Asians living in Britain and Canada is not much different
from the pattern of family prevailing in India. According to a Canadian informant who
works with South Asian families regularly -- (personal communication) -- as many as 80-
90% of the Indian families, where parents of either spouse have come to join their
married son or daughter in Canada, are joint or extended families .

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.e., 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 . In other jurisdictions marriage may be a contract, or
an economic partnership between two persons.

Indian marriage, on the other hand, is not an economic or equal partnership between two
people but an association between two families.When a marriage of a young man or
woman is contemplated in a South Asian household, it is not only the prospective bride
and groom who are considered but also the nature, wealth, status, and caste of the
families they come from. 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. Where such a marriage has taken place, i.e., either the bride or
groom have been forced to marry someone whom they had not known or seen before the
day of marriage, the Court has been asked to annul the marriage but without success.28

After marriage, in most rural areas and some urban neighbourhoods, the bride not only
joins her husband, but also the family of her husband, whose parents often live with the
married couple. The family thus is not nuclear but joint; i.e., a family joint in worship
and food. The earnings of the family members may be put in a joint account from which
are paid the mortgage and general household costs.

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. As such she may be financially much
disadvantaged at marriage breakdown, in a jurisdiction which allows for equalization of
family property, because she has spent a larger portion of income on third parties .

This type of paradigm is in stark contrast to the western model of family which, until
recently, has been described as the 'nuclear', 'heterosexual' or 'married' family where a
man and woman formed the family unit (with their children, if any) after having been
'joined in holy matrimony' in a church ceremony, or having been declared husband and
wife in a civil ceremony.29

However, some men and women have cohabited, i.e., 'living in sin', without getting
married, 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, until recently.

28
Singh v. Kaur
29
Some authors have argued that this sort of idealized family "may never have
existed" (p. 30) except "for only a brief period in the mid twentieth century",
O'Donovan, op. cit., p. 30.
 Family Law in South Asian Context
7

Other forms of families, e.g., same-sex couples, have continued to develop in western
countries. Lesbian and homosexual couples have been granted judicial recognition as
'married couples' by Canadian courts as far as medical and social benefits, and division of
property at marriage breakdown is concerned; though in some jurisdictions such
'marriages' are still a point of controversy.

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. 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. Under pressure from various feminist and other SIGs,
publishers of children books have issued books that describe alternative families made up
of unmarried men and women cohabiting together, same-sex couples and single (married
or unmarried) mothers raising their own or adopted children as family units. 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.

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.30 For example, 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:

- affirm the role of families (not family) as fundamental units of

society;
- recognise a diversity of family forms...31

This, say the Commissioners, has been necessitated by "the fact that divorce is
increasingly prevalent as are second and third family units; the social acceptance of
cohabitation relationships as a family form; the increasing number of children born
outside marriage; and the increasing recognition of same sex cohabiting couples both
socially and legally".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".33

30
Alberta. Canadian Research Institute for Law and the Family [Diane Pask et al].
How Much and Why? Economic Implications of Marriage Breakdown: Spousal and
Child Support. Calgary, 1989; B.C. Law Reform Commission. Questions and Answers
about Pension Division on Marriage Breakdown. [Vancouver], 1996; Ontario Law
Reform Commission. Report on Family Property Law. Toronto, 1993.
31
Nova Scotia [W. Charles]. Matrimonial Property in Nova Scotia: Suggestions for a
New Family Law Act: Discussion Paper. Halifax, 1996, p. i.
32
ibid.
33
Ontario. Report of Family Law. Toronto, 1993, p. xiv.
However, the diversity that almost all law reform commissions are talking about is one-
sided diversity; diversity as viewed by Eurocentric commissioners or report writers who
have conveniently neglected a very special type of family form, i.e., joint or extended
family, which is quite prevalent in some immigrant populations.

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, we present here a
hypothetical case that may highlight a possible problem that I envisage for a working
Asian Indian woman, living in a joint family situation, at marriage breakdown.

Hypothetical Case
Let's say an Asian Indian girl, either born or educated in Canada, goes or is sent to India
to get married due to family pressure or by tradition. She marries in India, and sponsors
her Indian husband, who joins her in due time. The girl is employed, supports her
husband during his adjustment phase in Canada, helps put him through college or
additional qualifications, and finally he finds a job.

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).

The extended family moves into a bigger and more sumptuous home, acquires
prestigious belongings to show newly achieved status but the Indian husband gets fired,
or leaves his job because it is below his qualifications; thus making the Canadian Asian
girl to contribute a high proportion of her earnings to the total household expenses. In
fact, she may have supported the whole enterprise herself, making herself much poorer in
the process (i.e., had she not lived in a joint family situation) while her husband's and his
parents wealth continues to grow from zero to thousands.

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, some older Indian men (and a
few Indian women), however, do find gainful employment.

While earning a living in their own right, most older folks continue to live with the
married child (usually the son) but rarely contribute proportionally to the household
expenses. Some old folks, however, may baby sit their grand-children in lieu of making a
direct payment to their son or daughter-in-law for boarding and lodging.

In a situation like this the Canadian Asian woman has very little hard cash or savings to
show in her own account, but the total family income has risen manifold. She is the sole
provider of her extended family's household expenses, while moneys earned by her in-
laws are theirs to keep.

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.e., overseas Indians who have adopted the citizenship of
other countries].
 Family Law in South Asian Context
9

cannot be easily traced.

Now let's say, after a few years, rifts develop between the Canadian Asian girl and her
Indian husband who refuses to do, hanging on to his Indian mentality, any household
chores (washing the dishes, doing the laundry or ironing) because they are below his
dignity. 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.

In the meanwhile, the husband's parents, who have resided with their married son and
his daughter, have accumulated tens of thousands of dollars in OAS35 and other
government benefits36 while contributing a negligible amount to the household expenses.
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).

Several issues that come to my mind. I will point them out as we go along, but first allow
me to explain the Canadian situation re. family law.

Canadian Legal Structure re. Family Law

Canada is a federation comprising ten provinces and two territories which have their own
provincial and territorial governments. There is a division of powers between the
provincial/territorial governments and the federal government.

This is so delineated in the British North America Act, 1867.37 In family law matters, 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.39 Though rules for divorce are uniform all over the country, rules for the
division of spousal (family) property at marriage breakdown vary from province to
province.

For example, unique to Nova Scotia,40 is the way family assets are calculated at marriage
breakdown. Unlike Ontario and most other provinces, where only family assets acquired
after marriage are to be included in the valuation of Net Family Property (NFP) of each
spouse, Nova Scotia includes "all property owned on the day of marriage as sharable

35
Old Age Security which can be collected, on a sliding scale, from the Federal
Government by all people who have lived in Canada for at least ten year.
36
Certain people, over age 65, may also be able to collect C.P.P. (Canada Pension).
37
Now called the Constitution Act
38
Divorce Act 1985, R.S.C. 1985, c. 2 (2nd Suppl). Upon proclamation of this Act (on
June 1, 1986), the Divorce Act, 1970 was repealed.
39
For example: (Ontario) Family Law Act, 1986; (Nova Scotia) Matrimonial Property
Act, 1980 (S.N.S., c. 9; now R.S.N.S., 1989, c. 275), etc. In addition, severval other
statutes, e.g., Family Maintenance Act (R.S.N.S. 1989, c. 160), can be called in to
play thier role in family law matters in a province (in this case Nova Scotia).
40
See, Law Reform Commission of Nova Scotia, Discussion Paper: Matrimonial
Property in Nova Scotia: Suggestions for a new Family Law Act, April 1996, p. 30.
assets"41 to be divided equitably.42 However, certain assets such as business, gifts and
inheritances, and some other property, e.g., personal property other than land, are
excluded from sharable assets at marriage breakdown in the province of Nova Scotia.43

In the province of Ontario, property is defined as "any interest, present or future, vested
or contingent, in real or personal property",44 i.e., any:

(a) property over which a spouse has, alone or in conjunction with

another person, a power of appointment exercisable in favour of
himself or herself,
(b) property disposed of by a spouse but over which the spouse has,
alone or in conjunction with another person, a power to revoke the
disposition or a power to consume or dispose of the property, and
(c) in the case of a spouse's rights under a pension plan that have
vested, the spouse's interest in the plan including contributions made
by other persons.

However, certain properties are excluded from a spouse's net family property, e.g.:

1. Property, other than a matrimonial home, that was acquired by gift

or inheritance from a third person after the date of the marriage.
2. Income from property referred to in paragraph 1, if the donor or
testator has expressly stated that it is to be excluded from the
spouse's net family property.
3. Damages or a right to damages for personal injuries, nervous
shock, mental distress or loss of guidance, care and companionship,
or the part of a settlement that represents these damages.
4. Proceeds or a right to proceeds of a policy of life insurance as
defined in the Insurance Act, that are payable on the death of the life
insured.
5. Property, other than a matrimonial home, into which property
referred to in paragraphs 1 to 4 can be traced.
6. Property that the spouses have agreed by a domestic contract is
not be included in the spouse's net family property.

Hence, when a petition is filed for separation or divorce both spouses are required by law
to file with the Court, under oath, a declaration of:
(a) the party's property and debts and other liabilities,
(i) as of the date of marriage,
(ii) as of the valuation date, and
(iii) as of the date of the statement;
(b) the deductions that the party claims under the definition of "net family
property";

41
ibid.
42
The division of family or matrimonial property (or values thereof) does not have to
be equal, i.e., 50-50, though the premise behind the equal division of family
propoerty is that both spouses have made an equal contribution to the marriage.
43
The Act states: "gifts, 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". Reformers of
this clause, however, have argued "that such assets should no longer be exempt"
(N.S. Discussion Paper, op. cit., p. 36).
44
Family Law Act, 1986, s. 4 (Definitions).
 Family Law in South Asian Context
11

(c) the exclusions that the party claims under subsection 4(2); and
(d) all property that the party disposed of during the two years immediately
preceding the making of the statement, or during the marriage, whichever
period is shorter.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".

This is all well and good in theory, but in practice it is not so easy obtain full and fair
value of all marital property without some trouble and cost. If divorces were meant to be
simpler and easier to obtain without (excessive) litigation it has not happened so. Though
a great proportion of 'no fault' divorces -- as many as 95% of the cases -- are settled out
of court through attorneys negotiating, private ordering or under the law, a few cases do
end up in the Court.

On the Division of Family Property

A major asset of most couples is the family home. Its value is easily ascertained by
obtaining a comparative market value from a professional appraiser at some cost. The
value of other assets, 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.

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..

Technically a spouse is in his/her right to demand valuation of everything in the

household, held by the parties and their children. However, it is generally agreed (in
most amiable divorces) that personal effects, like clothing and things used by a spouse,
are a spouse's personal property, and not to be taken into consideration while preparing
NFP statement. But it is not always so. A difficult spouse can make simple matters
difficult if he/she insists on including everything in the household, including salt and
pepper shakers, soaps and toiletries, woman's apparel and jewellery, children's
belongings and whatnot as matrimonial assets countable and divisible at marriage
breakdown.

About Woman's Jewellery

Of particular interest to a legal practitioner involved in a South Asian divorce is the
woman's jewellery. A problem can occur at marriage breakdown if the male spouse
insists on including and dividing his wife's jewellery -- wedding bands, betrothal or
engagement ring(s), and other wedding gifts such as silverware, etc. -- as family property

45
F.L.A. s. 8.
46
Registered Retirement Savings Plan similar to PEP in Britain.
whose valuation must be included in the wife's NFP. 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. However, South Asian custom and
tradition is not so silent. Hindu law is quite clear as to what forms a woman's property,
technically called Stridhanam.47 Personal property of a wife "consists of her ornaments,
and wealth (which she may have received from her relations)". A text of the Puranas 48
(paraphrased here) says:

The wife is [the] mistress of wealth obtained by her marriage; and she,
and she only, has the right over such property which she cannot be deprived
of without serious consequences. Severe punishment is due for taking or
stealing a woman's wealth, and property obtained as Stridhana, cannot be
shared by the coparencers, except in cases of distress, danger, or when the
family is in dire straits, or if the family's honour is in question. Even Then the
woman's property can be taken only with her permission, or if she
volunteers it herself.49

According to Hindu custom and tradition, woman's gold jewellery and ornaments are
considered gifts to a woman, a part of her dowry and property, items given as gifts of
affection (pritidatta). As such they shall remain her property, excluded from inclusion
from her NFP. However, the law as it stands in Ontario and most other provinces is a bit
vague and unsure on this issue. 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.

Responsibility of Grandparents and Third Parties Living in a Joint Household at

Marriage Breakdown of Principal Partners

When a family is joint, united in mess and worship, living under a single roof, a variety
of benefits (and of course tensions) accrue to all members of the joint family. However,
when marriage between the principal partners breaks down, it is not only they but also
other members of the family who suffer. For example, 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.

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. But overseas, the
situation is reversed; the older folks would usually be living in their son's (or daughter's)
house and his/her spouse. In the hypothetical situation detailed earlier in this paper, we
might wish to consider the situation of man's parents who have been living with their son
and his wife; the later having supported them for most of her married life.

Since the husband's parents have been living the married couple, say for 10-20 years,
47
This concept is discussed in most books on Hindu law, e.g., Ghose, The Principles
of Hindu Law, see Section IV, chapter on "Stridhana", pp. 328ff.
48
Loosely described as: ancient law texts, stories or histories of pre-historic periods.
49
Vishnu, XVII, 22, vide Ghose, op. cit, vol. 1, p. 376.
 Family Law in South Asian Context
13

during which time they have made little financial contribution to the family's household
expenses, but have certainly cost one of the spouses (in this case, the wife) substantial
expenses for boarding and lodging them for such a long period of time. Hence the wife
has suffered significant depletion of her financial resources to support two extra adults
who have in the meanwhile, during their stay with the married couple, cumulated
significant savings through employment and government benefits.

The question being asked here is this: Since the older folks are members of the husband's
family, 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, but a case is
currently proceeding through Ontario courts which might be of some relevance here. In
this case, 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. 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.

If the woman in this case prevails, then surely the wider family (members of the joint
family, living with the married couple in the same household, 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.

But, the woman in this case may have another avenue open for her to consider, i.e., of
contructive trust and undue enrichment. 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, and that she had hoped that they would pass on their estate at their death to their
son or grandchildren. 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, was in fact being
held in trust for her and her family.

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.
Conclusion

The effort made in this paper is far from satisfactory and the case has not been laid to rest
conslusively. There are so many ifs and buts as far as the hypothetical case is concerned.
However, I believe, 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, 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.

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. Since the number of South Asians living in Britain and Canada is significant,
even though the divorce rate in this community may not be as high as in the host
community, divorce does still occur in this community. It is suggested that law-makers
and others involved in policy making decisions re. amendments to matrimonial property
may wish to consider the arguments made in this paper. viz. 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, and that at marriage break-
down she should be appropriately compensated for her efforts. If an argument for unjust
enrichment can be made in such a case is yet to be seen, but such an argument has
already been made in cases relating to common law spouses at the high court level in,
e.g., Murdoch v. Murdoch,_ Pettkus v. Becker,_ Sorochan v. Sorochan_ and Peter v.
Beblow._

The other argument being made is regarding the inclusive nature of the definition of
Φmatrimonial property. Any divorce is a traumatic experience -- costly both emotionally
as well as financially. It would make sense if the legislation, instead of complicating
matters, would rather try to simplify divorce procedures that would not cause so much
drain on the parties. Inclusive nature of property is one thing that can be simplified. For
example, items of personal nature, children∋s effects, and things mainly used by a single
spouse need not be included. In deed the whole household contents need not be valued at
tremendous cost and conflict. They should be divided between the divorcing couples.

In the context of the South Asian couple, jewellery and other items of dowry, can
become a bone of contention. Whereas the woman can say I want all my dowry or
marriage gifts given to the bridegroom and his family be returned, 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. This can complicate already complicated matters.
 Family Law in South Asian Context
15

Questions seeking Answers

1. 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. What does marriage mean? Does a person marry a person, or into a family?

3. How, in western society, could the wider family be regarded as a legitimate ‘target∋
for division of assets?

4. Would this broader recognition of the contribution the wife makes to the household,
than has hitherto been granted, 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. 44 (2002) 16-35