Hallo All,
We recently came across this issue from our friend who is in a process to buy a house.The house is being bought in the name of both the partners( husband and wife).They were married in India.The Notar wants to know according to the Hindu Marriage Act how is the division of the property goverened?

Do they have to look for a lawyer or is it a simple matter by qouting some pdf doc on the marriage laws in India sufficient.

Why is the Notar asking such questions, how does it matter to him?

>>>>The Notar wants to know according to the Hindu Marriage Act how is the division of the property goverened?

B'coz the notar wants to clear the fact, about the property will be division among the couple in case of their seperation.

May be he wants to know if there were any conditions between the husband and wife while getting married

Thanks Nomad,

The marriage like many from India are registerd under Special Marriage Act 1954 and ofcourse there was no pre nup agreement .

So will it be sufficient to explain the Notar that on separation the indian court of law decide how the property is distributed otherwise the Hindu Succession Act takes place as both the partners are Hindus ( at time of marriage) when they are married together.

Is this issue raised by Notar stop letting my friend buy the house ?

Please advice.

@stier

Hindu Marriage Act/Succession Act is hardly of any relevance if the matter is to be decided in german court of law.

What division?? The house goes to the wife and her new boyfriend and you are thrown out in street left with your two hands to do whatever you feel like.

German civil law applies in all family related cases, even if you come from a land, where one of the spouse is not entitled to any property.

Thanks Akshay for providing humour .
@Stutt23: So you mean that even though the house is brought here the german civil law will prevail over the Special Marriage Act .

So what should be the appropriate ans / reponse to the Notar:

Though both partners( husband and wife) are married under foreign law, the property at the time of marriage is shared between the spouses ( after marriage) and there is nothing as like that property is divided already between them , just like it is in Germany and no releigous laws takes precendence here.

I guess they call it Guetergemeinschaft in germany for this kind of setup.

Am i right ..

"Why is the Notar asking such questions, how does it matter to him?


If one wants to buy property in Germany the contract in order to be valid has to be certified by a notary public. The notary public is an impartial public entity. The process is called "notarielle Beurkundung". The reason behind this is to prevent any rash decision to enter into such an eventful transaction as buying property. Also, the notarielle Beurkundung is to make sure that the parties, especially the buyer, are properly informed about the terms and conditions of the contract they are entering into. Apart from the terms and condition of the contract, the notary public has a duty by law to explore the intent of the parties and set out the ramifications of the contract to them. The actual scope of this duty is depends also on the parties involved., i.e, here foreign nationals. A violation of this duty could result in the notary public being liable for damages later on. It seems that the notary public saw fit to explain in advance what the consequences will be in the off chance of a divorce later on. Here it is worth knowing that according to German Conflict of Laws this question is primarily governed by the law of the land to which both spouses belong, here India. Indian Conflict of Laws will then determine whether this question is really to be determined by Indian law as the property is in Germany. If Indian Conflict of Law says "yes", then this question could be answered by the relevant law, be it the Hindu Marriage Act or any other. If the Indian Conflict of Law, however, says "no", then the question of how the property is treated in case of a divorce is governed by German law.

Rechtsanwalt_Jain(at)yahoo.de

Thanks a ton Vakalat.

SO in this case a advice was given to make the Kauf vertrag and it was ..

'include a line in the contract that both spouses will share the house 50 50'

is this ok and keeps in accordance to all the Notar responsibilities on good separation on Divorce