Divorce from A to Z – Read this article in its entirety and you will know how to tackle a divorce case from start to finish!
Life doesn’t always pan out the way one envisioned it and our choices do not always yield the result one was expecting. Unfortunately, unhappy marriages are all too common in India and a growing number of individuals and couples resort to getting a divorce. A divorce is one of the hardest and life-transforming decisions one can make in a lifetime and it pays dividends to be up to speed with the procedures before they commence.
The judicial system has a vested interest in protecting the institution that is marriage so it is only to be expected that certain legal barriers are erected to prevent marriages from being annulled on a whim. For this exact reason, Indian family courts demand a reason be given for a divorce. An example could be adultery, cruelty, desertion or even impotence (the inability to ‘consummate’ the marriage). These reasons, or grounds for divorce can also be considered ‘crimes against marriage’ or ‘matrimonial offences’.
For clarity it should also be stated that a variety of marriage laws exist to cater for India’s diverse population. When dealing with a divorce based on matrimonial offences one should refer to the legislation applicable to one’s faith, religion or race. For example, Hindus adhere to the Hindu Marriage Act whereas Muslims abide by the Muslim Marriage Act. In fact, there a few more laws in effect that pertain to a particular Indian demographic. In short, different rules apply to different races and religions.
A common misconception in India is that it takes years for a divorce to be granted. This is not necessarily true as a ‘divorce by mutual consent’ can be wrapped up in a matter of 6 months. A ‘divorce by mutual consent’ or ‘no-fault divorce’ is basically when both spouses decide to mutually end the divorce despite no clear violation of marriage laws. This is better known as divorce due to ‘irreconcilable differences’ in other countries.
A divorce by mutual consent is a straight-forward affair that consists of both parties coming to a mutual agreement on the terms on which they agree to part ways. This is then reviewed by the Family Courts and finalised in 6 months.
If the decision to part is not a mutual one, the divorce procedure will change to a ‘contested’ divorce. This has some major legal implications and will complicate the process and increase the duration of the court proceedings.
Before we delve deeper into contested divorces it is worth noting that only the resident state of both spouses or the state where the marriage was legally registered possesses jurisdiction over their divorce matters. This is the only location where divorce papers or petition should be filed, regardless of it being a mutual consent case or a contested case.
Contested Divorce Proceedings
Step 1. Collect data and start building your case. Hire a solicitor.
You need to determine on what grounds you are seeking divorce and you need to start collecting evidence that will underpin your case. Start collecting information regarding your marital problems along with copies of your important personal documents such as tax statements, property and asset details. In this day and age of new media, also consider that photographs and videos are admissible in evidence and don’t forget that your spouse’s emails/chat logs/Facebook updates/tweets can be presented in court too! These might become the deciding factor when trying to prove adultery or cruelty.
Step 2. File a petition.
The divorce procedure officially starts when a spouse files a petition for divorce via a lawyer and a divorce notice is sent out to the other party. The purpose of a divorce notice is to clearly specify the reasons for seeking divorce and the violation of any grounds and proof of the committed violations. It must be acknowledged personally by the spouse who receives the notice with his/her signature.
Step 3. The court case and possible counselling.
The court case will commence with both parties in attendance (bi-parte) or with one spouse missing from the proceedings (ex-parte). In case of a bi-parte case the courts typically would send the couple to counselling or a mediation service and impose a waiting period. Remember, the Indian courts really don’t want you to divorce! This might lead to re-unification or an amicable split/divorce and negate the need for elaborate court proceedings.
Step 4. The hearings and examinations.
Once this waiting period expires and the spouses have not resolved their dispute, they are granted a hearing in court and the divorce proceedings resume. Examinations will take place followed by cross-examinations. The ultimate goal of these proceedings and interrogation techniques is to uncover the truth.
Note: In reality this step is a bit more complicated than explained here. It is important that one is informed by their solicitor on the correct procedures before the hearings take place.
Step 5. Try to settle out of court.
Complex issues such as child custody, child support, alimony, division of assets etc., are usually recommended to be mutually settled out of court; as they may further elongate the already tedious process of divorce if opted to be settled legally by the court itself.
Step 6. The verdict.
After extensive evaluation of the case and after listening to final arguments of both parties, the court issues a divorce verdict and both spouses are given a copy of the court judgement for record-keeping purposes. The civil court verdict for divorce is final and cannot be contested in higher courts.
Step 7. Contest the decree.
The Court’s final verdict is drawn up in a ‘decree’. The contents of this decree may be contested by appealing to the High Court and subsequent Supreme Court.
The duration of a contested divorce ranges between 2 to 4 years, possibly longer if contested aggressively The divorce process in India is extremely challenging and can prove to be very draining – both emotionally and financially. However, adequate preparation and foresight while planning your divorce can help relieve the tedious legal divorce process in India; and help you transition to a post-divorce future more easily.
Disclaimer: this article is for general information purposes only. Always consult a solicitor before you proceed with a divorce. Your situation might need a different approach.