Divorce is the final breakdown of a marriage and the last resort opted by couples in India to sever their marital ties. Once the divorce decree is obtained, whether it is through a divorce by mutual consent or a contested divorce, it has several legal effects on the divorcing spouses.
The process by which legal obligations are met with during the annulment of the union is called a divorce. This is done keeping in view that men or women aren’t able to simply walk away from the partnership without having to care about the responsibility of their partner’s well being.
INTRODUCTION:
A divorce is among the most traumatic occurrences for any couple. To add to this, it can also be a long-winded and costly affair if divorce is contested. Even couples who mutually agree to the divorce, however, must prove that they have been separated for a year before the courts consider their plea.
In India, as with most personal matters, rules for divorce are connected to religion. Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956. A spouse can initiate to give a legal notice for divorce to the other spouse before ending the husband and wife relationship.
ALTERNATIVES TO COURT (Outside the Court)
Most people think all divorces end up in court. In fact, there are alternative ways to resolve divorce cases. One method is “mediation” in which a mediator (neutral third party specially trained to work in divorce cases) facilitates face-to-face negotiations between divorcing spouses and helps them work out mutual agreements. The mediator will often recommend that each spouse consult with an attorney while the mediation process is proceeding. However, these consulting attorneys don’t attend mediation sessions.
In a “collaborative divorce” each spouse hires a collaborative attorney, and all parties agree to resolve the case without going to court. A team of professionals is assembled to assist in the decision- making process. Besides the attorneys, the usual team includes mental health professionals (who function as “divorce coaches” and child specialists) and a neutral financial specialist, such as an accountant or a financial consultant. Using face-to-face negotiations, e-mails and telephone calls, the spouses and their collaborative team address each issue in the case.
INCEPTION; (Jurisdiction)
After the service of legal notice the process begins to get formal separation and the first question that poses one is where to file the divorce? In legal language one can understand it as a question of Jurisdiction. Many eminent matrimonial jurist have opined that there is an advantage in filing for the divorce first, as it gives the advantage to choose the place of suing for divorce.
Speaking tersely that could be easily assimilated on the major factors like:
- Court can be one where couple seeking divorce last lived.
- Court can be one where marriage was solemnized.
- Court can be one where wife is residing as of present.
AUTHORITY: (Court’s competency)
It becomes very crucial to ascertain
the proper presiding officer’s court before whom the divorce is supposed to be
filed as wrong jurisdiction might lead the whole surge of taking divorce futile
as, as per law the court before whom such petition are made must be competent
by the law of the country and should have the mandate of the specific law under
which the divorce is seeked.
TYPE OF DIVORCE:
Divorce can be obtained in two processes:
Divorce by Mutual Consent
Divorce by mutual consent is when both the parties agree for a peaceful separation. It is a simple way of coming out of the marriage and dissolves it legally. The main component of such a divorce is the mutual consent of the husband & wife. There are certain aspects to which the Husband & Wife have to reach a consensus. The first is the alimony or maintenance issues. As per Law, there is no minimum or maximum limit of maintenance. It could be any figure. Another consideration is child custody. Both the parties have to come to a consensus over these two topics.
Divorce by mutual consent can be filed when the husband and wife have been living separately for at least 1 year and have mutually decided to end their marriage. A joint divorce petition is filed by the divorcing couples in the court. In this form of the divorce petition, the terms and conditions of such a divorce are reached through an amicable consensus.
Divorce by mutual consent is filed under Section 13B of the Hindu Marriage Act, 1955. After the petition is filed the court gives a six-month cooling off period. The Supreme Court of India decided that if the marriage seems to be completely irreparable, the court may waive-off this cooling period. Once the cooling period is passed, a second motion is filed and the court grants a divorce.
Contested Divorce Procedure
As the name suggests, one will have to contest it. Divorce is filed when one of the spouses decide to divorce the other without his/her consent. This petition is filed in a court with help of a divorce lawyer, and the court sends a divorce notice to the other spouse.
To file a divorce petition in India, the divorce lawyer also submits the documents along with the divorce petition.
DOCUMENTATION
One needs to be supplemented with sufficient documents that are required to be filed in the court of law whether one is going for divorce by mutual consent or by way of contest. Documentations are cogent material which felicitates the court to reach at a solution conclusion which might have been raised during the hearing of the divorce petition.
These documents could be any in nature as per the requisition of the Hon’ble court before whom the parties appears and pleads for divorce by way of petition. Although a bracket of documents by calculating the odd from number of cases may provide list like:
- Address proof.
- Marriage certificate.
- Four passport size photographs of the marriage of husband and wife.
- Evidence proving spouses are living separately since more than a year.
- Income tax statements for the last 2-3 years.
- Details of profession and present remuneration.
- Details of properties and other assets owned by the petitioner.
HOW LONG DOES IT TAKE TO GET A DIVORCE? (Time Taken)
The divorce is granted by the court in approximately 18- 24 months. However, the spouses can withdraw their divorce petition during this 18 months period and no divorce will be granted by the court. Any spouse can withdraw the mutual consent divorce petition and file a contested divorce through a separate divorce lawyer.
The divorce petition is in form of an affidavit, which is to be submitted to the family court. Once the petition is filed and the formalities of the court are completed, there is generally an adjourning the matter for a period of 6 months. After the lapse of a period of six months, the parties are expected to present themselves again in the court for forwarding of the second motion so as confirming the mutual consent filed earlier. It is only after these processes are completed that the decree of the divorce is granted by the court.
IMPORTANT ASPECTS (Freebies with divorce)
A divorce settlement often leads to one or all of the following –
1. Child Custody:
After the breakdown of the marriage, child custody is one of the most sensitive cases to be dealt with because in this case, children are the ones who suffer the most. Courts take certain factors like the welfare of children, financial condition, safe environment, education into consideration before granting the custody to either of the party. Custody can be of following types:
- Physical Custody.
- Joint Custody.
- Legal Custody.
- Third-Party Custody
Statutory Provision – The legal framework includes the personal law and secular law known as Guardians and Wards Act, 1890.
2. Maintenance/Alimony:
Maintenance or alimony is the financial assistance provided by the husband/ wife to his/her spouse. It could be a lump sum one-time payment or paid at intervals and can be either permanent or temporary. Apart from personal law, a person of any religion can claim maintenance under Section 125 of Code of Criminal Procedure 1973. Under this section, an order can be passed directing the husband to provide financial assistance to his parents, wife or his legitimate or illegitimate children.
3. Property Division:
Generally, under current law, the wife doesn’t have rights over the husband’s property after the divorce. The Hindu Marriage Act, the court is empowered to pass an order with respect to property jointly owned husband and wife. But the law is silent on the disposal of separate property. If the property is stridhan or mehr then the husband is obligated to return the same when asked by the wife as she is the exclusive owner of such property.
It is upon the party to prove whether the property is of joint nature or something one has inherited or bought solely from his/her own money. Any sort of contribution from either party over the property is taken into consideration in deciding the division. For example, Supreme Court in line with CEDAW ruling has observed even if the wife has not contributed financially, still, she gives her time and energy as a homemaker and therefore is also entitled to a share in the property.
TERMINATION (Conclusion)
While a legal divorce is an event, occurring when a judge signs a marital dissolution decree, an emotional divorce is best viewed as a process that occurs minimally over several years and maximally over the course of a lifetime.
Although divorce is an experience of growth, change, and positive individual development for some, it is a psychological and emotional death for others. For most, it certainly is a time of tremendous stress, disruption, chaos, uncertainty, and craziness. With appropriate help from understanding and knowledgeable professionals, the process of divorce can be navigated successfully.
To end the topic on silver lining one can also fathom whether, a filed Divorce Petition be withdrawn?
Yes, the divorce petition can be withdrawn at any time. You can either file an application for withdrawal or you can appear before the judge where your divorce has been filed and express your intention to withdraw the case with reason.
