Indian succession laws are determined by the personal laws of distinct religious communities, and these laws categorize heirs into two gender-based groups: Male and Female
In 2018, the Supreme Court's Constitution Bench repealed Section 377, thus decriminalising homosexuality and marking a crucial victory for the LGBTQIA+ community. However, the Supreme Court on October 17 declined to give legal recognition to same-sex marriages, arguing it was the prerogative of the legislature.
The absence of formal marriage rights for same-sex couples has repercussions on succession and inheritance laws. The legal framework governing succession and inheritance is primarily dictated by personal laws corresponding to an individual's religious affiliation. Consequently, even when there is social acceptance, these couples continue to face discrimination in various aspects which, inter alia, include purchase of property, inheritance, access to joint home loans, etc.
Here are five things that same-sex couples should know before purchasing a property.
1. Can same-sex couples jointly buy property?
While any heterosexual couple in India can jointly buy a residential property, same-sex couples would not be able to jointly own property given that same-sex marriages are not recognised in India. Various government bodies only permit family members to jointly own residential property and, hence, same-sex couples may be able to own the property as individual co-owners but would still lack the satisfaction of jointly owning the property as a couple.
2. Would this have changed had same-sex marriage been allowed?
Legally recognising same-sex marriage would have yielded numerous positive outcomes in the real estate sector. It would have enabled such couples to jointly apply for residential plots under various government schemes, as then they would have been family members and would have enjoyed the privilege of jointly owned property.
3. Can same-sex couples inherit property? How will this change if same-sex marriages are permitted?
Indian succession laws are determined by the personal laws of distinct religious communities, and these laws categorise heirs into two gender-based groups: male and female. The Hindu Succession Act, applicable to Hindus, Buddhists, Sikhs and Jains, does not recognise same-sex marriages, depriving same-sex spouses of automatic inheritance rights. Likewise, personal laws in other religious communities like Muslims, Christians and Parsis also do not acknowledge same-sex marriages, posing challenges for same-sex couples seeking inheritance rights. Same-sex marriages can be permitted by amendments to personal laws governing succession to grant same-sex spouses legal rights over a partner's property in the event of their untimely death or otherwise. In the absence of such laws, same-sex couples have no legally recognised rights of inheritance to the partner’s property.
4. Can same-sex couples avail of joint home loans? How will this change if same-sex marriage is legally recognised?
While any two people can buy a property together, only blood relatives or legally married couples can jointly apply for home loans. If one wants to apply for a home loan jointly, one of the mandatory requirements is proof of relationship. This limitation prevents LGBTQ+ partners from applying for loans together in the absence of legalised same-sex marriage. Upon the recognition of same-sex marriages, such prevailing limitations would no longer be applicable as they would be able to provide proof of relationship to avail of joint home loans.
5. Which countries permit same-sex couples to purchase property in joint name?
The situation surrounding LGBTQ+ rights and recognition varies widely around the world. While several jurisdictions have made strides in legalising same-sex marriage and protecting LGBTQ+ individuals from discrimination, others continue to uphold restrictive policies and discriminatory practices. In some countries, like France and the US, LGBTQ+ couples can jointly own property and have the same financial rights and privileges as those accorded to heterosexual couples, while in some others, legal recognition and inheritance rights remain elusive. The global landscape is marked by an ongoing struggle for equal rights and recognition, reflecting the diversity of cultural, social and legal perspectives on LGBTQ+ issues.
The author is the managing partner, ZEUS Law Associates, a corporate commercial law firm. One of its areas of specialisation is real estate advisory and litigation practice.
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