Divorce – The Process, Settlement, Custody of Children and Alimony

Divorce: What might have seemed like a bond for a lifetime at the time of the marriage ceremony, with time, can lead to succumb to compatibility issues and temperamental differences. These sometimes not only make a relationship sour but sometimes even unbearable. Consequently, such matrimonial problems often lead to divorce.

Now, there might be times where one person in the relationship may want to resolve the dispute. Similarly, the other doesn’t and remains unshakable to seeking separation through divorce – such disagreements will lead the matter taken before the Court. A judge will decide whether the party makes the plea for divorce is and right. Such a contest for divorce is referred to as ‘contested divorce’ in well-known language.

In other situations, where both the parties agree to dissolve their marriage cordially, a mutual consent divorce can be sought out.

In the Indian judiciary, marriage and ending of marriage come under personal matters of the individuals, and the laws are based on the customs and rights of different religions, as stated below

  • The Hindus, Sikhs, Buddhists, and Jains are governed according to the Hindu Marriage Act, 1955.
  • The Muslims are controlled by the Dissolution of Muslim Marriages Act, 1939.
  • The Parsis are governed according to the Parsi Marriage and Divorce Act, 1936.
  • The Christians are governed according to the Indian Divorce Act of 1869.
  • The Special Marriage Act of 1956 is known to oversee all the inter-community as well as civil marriages.

Table of Content

Divorce with Mutual Consent in India

Times when both the partners in a relationship are just as annoyed with one another and decide for good that they want to dissolve their marriage, a mutual consent divorce could be obtained. Section 13B of the Hindu Marriage Act offers a mutual divorce for Hindus, Jains, Sikhs, and Buddhists.

How Much Time Does It Take To Get A Divorce?

Although this process is much quicker and easier than the tedious contested divorce process, it doesn’t happen efficiently and cheerfully. It still is a legal procedure that consumes time. The process is finished up in 2 hearings, also known as the “motions.”

The law prescribes a compulsory pacifying period of 6 months to be observed between the two motions, hoping that if there are any chances of making amends and working the marriage out, the period might help to restore the marriage.

So together, including counselling, documentation, settlement, and two motions, the whole process of getting the final mutual consent divorce order might consume about seven months.

Aspects of delay which one needs to consider:

Opponents must keep in mind that the scope of certainty in legal works is huge, and delays could be on account of several factors:

  • Extended delays in negotiation on the settlement terms. Any immature lawyer whose expertise is not marital laws could keep the settlement of documents going back and forth.
  • The incapability of a lawyer – some lawyers take the callous approach and don’t deliver their work in time. This is one of the important reasons for harassment that clients tend to meet while complying with the legal procedures.
  • The carelessness of the other party.
  • Court Strike/ off/ absence of the judge. If a court has called off work on account of the strike, the next available date will be given.
  • Non-appearance of the party – if a party voluntarily or involuntarily disregards and does not appear on the date of the second motion, the court might grant the next available date.

Can the Compulsory Period of 6 Months in Mutual Divorce be Renounced?

In one of the recent judgments, Amardeep Singh Vs. Harveen Kaur in the civil appeal number 11158 2017, the Hon’ble Apex court made an exception by waiving off the six months in a mutual divorce petition, by observing that the history of litigation and countless failed attempts of reuniting over the course suggest that holding on parties by law for another six months in the relationship will only hamper the interest of justice.

The period had been waived by the very reasonable and wise Hon’ble Justice Adarsh K. Goel.

However, in lack of legal understanding and under the half-blanket of knowledge, individuals have started taking the exercise of discretion for granted, believing that mutual divorce no longer requires a six-month compulsory wait.

Carefully reading the above-referred judgment throws light on the intent and direction of the apex court in waiving off the six months cooling-off period.

Legal Necessities for a Divorce by Mutual Consent

How can one get a divorce in India from a husband or wife? Are there any new rules related to divorces in India? Such intrusive thoughts might stress a sufferer who is under distress of an utterly dead marriage.

There are particular legal grounds for divorce that work for both husband and wife. Besides that, when it comes to new amendments in-laws of divorce, the government and judiciary keep introducing beneficial changes for improving legal remedies.

According to the Section 13B of the Hindu Marriage Act, 1955, the following conditions for a divorce by mutual consent are restricted:

  • The married must have lasted for at least one year on the date of filing.
  • Must have been staying separately for at least one year.
  • The couple is not able to live together.

Husband and wife have reached an agreement to get divorced, and when they have agreed with that, the marriage has completely ended.

In case of an uncontested divorce, the wife and husband need to file a petition in the family court of their last lived location. On receiving the petition and recording the statement of both the members of the relationship, the court adjourns the issue for six months. After six months, the family court hears the case again.

This second motion confirms that the agreement of the two parties for dissolving the marriage. When the court has satisfaction with the offered evidence and statements, the divorce is granted in this second motion.

Child custody, alimony, maintenance, visitation rights, distribution of assets, and property are all mutually decided in this type of divorce. The essential aspect of mutual divorce is a timely, peaceful, and adequate settlement.

No matter how simple it seems, there is no room for unprofessionalism and incompetence. A slight mistake made by a novice lawyer could make the clients suffer huge – both in terms of time and money.

This is one aspect that a person cannot and preferably should not compromise on the quality and must seek the assistance of the available best divorce lawyer.

Contested Divorce in India

If in case it comes to statistics for how long a contested divorce takes in India, the answer could be a little disturbing. In most cases, the problem is stretched longer due to disagreements on various issues, unprofessional and insensitive attitudes of parties and their lawyers, distant court dates, and excessive workload.

This is when a distinguished divorce lawyer’s role comes into play. A skilled divorce lawyer can alleviate stress and can reduce time consumption. In case of a contested divorce, the legal grounds are mentioned in Section 13B of the Hindu Marriage Act, 1955 are:

  • Leprosy
  • Adultery
  • Conversion
  • Venereal disease
  • cruelty
  • Mentally unstable
  • Renunciation of death.
  • Non-resumption of cohabitation by a spouse
  • There is no knowledge about their whereabouts for more than seven years.
  • Non-restitution of conjugal rights.

On any of the above grounds, a divorce petition can be filed in India. Further, the party needs to present the evidence in court for supporting which divorce is sought.

The woman in the relationship is entitled to many rights even after the divorce, including child custody, child visitation, asset distribution, property rights, maintenance, alimony, etc.

Divorce And Child Custody

When a marriage breaks or ends up in the separation of spouses, the person who is affected the most is the children born out of the marriage. Hence, while keeping in mind the right of a parent to the custody of a child, the Indian Law holds the children’s welfare as the most essential factor of consideration when deciding who gets the custody of the minor child.

Factors Constituting Welfare of A Child

Four factors constitute the welfare of a child: –

  • The economic well-being of the guardian
  • The ethical upbringing of the child
  • Good education to be imparted
  • Safe-keeping of the child

Who Has A Right To Minor Child After A Divorce?

Both the parents of the child have an equal right to the custody of the minor. However, who gets custody of a child is still the question which the court can decide upon. Moreover, when it comes to personal laws, the statutes are conflicting compared to the secular enactment made in the form of The Guardian and Ward Act of 1890.

This act holds the child’s welfare as the paramount importance and, thereby, the court of accomplished jurisdiction attempt at striking a balance between the two. And because the custody of the child is given to one parent, that does not imply that the other parent can’t be in contact with the child or see the child.

The courts in India make sure that the child gets the affection and attention of both parents. The court also gives the other parent visitation rights, for which the court determines the conditions.

Kinds of Child Custody Arrangement

A court of proficient jurisdiction in India mainly orders the custody of children in the following three forms:

  • Physical Custody: When awarded to a parent, physical custody means that the minor will be under the guardianship of this parent with periodical visitation and interactions with the other parent. The target for such a custody award is to offer a better life to the child in a safe and fulfilling environment and ensure that the child is not deprived of the love and affection from the other parent during their formative years.
  • Joint Custody: Joint custody of a child does not imply that both the parents have to live together because of the child, even though Indian courts believe that it is best for the welfare of a minor. Joint custody means that both the parents will take care of the child turn by turn, keeping the child in their custody. The child’s rotation among the parents may vary from certain days or weeks or even for a month. These benefits the child as the child gets the parents’ attention, and on the other hand, the also parents get to be a part of their child’s life.
  • Legal Custody: The legal custody of a child doesn’t necessarily involve having the child with the parents or vice-versa. It suggests that the parents are given legal custody and can decide for the child, including their medical treatment, education, etc. In most of the scenarios, legal custody is awarded to both the parents together. Still, in some cases where the divorce is disordered, and parents don’t agree with each other, then in these cases, the court gives legal custody to any of the one parents.

How To Know About The Type Of Custody Granted?

Until the order of the court specially mentions the conditions discussed above, the parent who has been awarded the custody of the child gets both legal custody and physical custody. If there are any other kinds of custody given, it will be mentioned in the court’s order and made clear to both parties.

Who Could Claim Custody The of A Child?

The custody of a child could be claimed either by the mother or the father of the child. In any of the cases where both the parents are not in the picture due to some law or deceased, then in such cases, the paternal or maternal grandparents or other relatives could claim the custody of the child strictly due to their compassion towards the child. In many scenarios, the court appoints a third person as the child’s guardian.

Who Has The Priority Claim In The Custody of A Child?

The Honorable Supreme Court of India and other courts in India have regularly mentioned that a minor’s custody, the only consideration is the welfare of the minor, irrespective of the parties’ claims for the custody of children.

Under the Hindu and secular law, the custody of the child under the age of five is usually awarded to the mother of the child.

In most cases, fathers are awarded the custody of the older boys and mothers of the older girls. Moreover, children’s interest is the primary criteria, and the court considers the child’s choice above the age of nine. Wherein if a mother is found ill-treating and neglecting the child, then she is not granted custody.

Who Will Get The Minor’s Custody If The Mother Has A Weaker Financial Condition In Comparison To The Father However, The Father Has Remarried And Has Kids In The Second Marriage?

In such scenarios, the mother is not going to be discarded as the guardian because she earns less than the father. In such a case, the child’s father needs to provide for the child’s maintenance.

Furthermore, the principle of law says that a stepmother needs the primary obligation of affection and attention towards her children, and the father would remain out of work during the day. Hence, the mother is considered to be a better guardian for the minor.

Legislations Governing The Child Custody Under Various Laws Of India

As India is a secular nation, it has different religions to follow. Hence, every religion has its law set for child custody, which determines how a parent seeks custody of the child.

  • Custody Under The Hindu Law: The laws under the Hindu Law, Section 38 of Special Marriage Act 1954, Section 26 of Hindu Marriage Act 1955, as well as the Hindu Minority and Guardianship Act 1956, mention the rules and regulations set to seek the child’s custody. Let us discuss them in details:
  • Section 26 concerning the Hindu Marriage Act of the year 1955: It deals with the caring, maintenance, and education of the child, and only if both the parents of the child follow the Hindu religion, the custody of the child is going to get validated. According to this act, the court can pass orders, amendments, judgments, etc., at any point of time regarding the child’s maintenance and dispose of the pending judgment within 60 days from the notice of the service date.
  • Section 38 concerning the Special Marriage Act of the year 1954: This act validates the child’s custody in case both the parents belong to different religions or have undergone a court marriage. According to this act, the court can pass orders, amendments, judgments, etc., at any point of time regarding the child’s maintenance and disposal of the pending judgment within 60 days from the notice of the service date.
  • Hindu Minority and Guardianship Act 1956: This act permits only the biological parents for seeking the custody of their minor child, needed that he/she is a Hindu.
  • Custody Under The Hindu Law: Under Muslim law, only the mother of the child has the right to seek his/her child custody as per the Right of Hizanat until she is not found guilty of any misconduct. The child’s custody under the Muslim law is with the mother until the child has attained seven years for a boy until she has attained the age of puberty or majority for a girl. The child’s custody remains with the father until the boy has attained seven years. The girl has reached the age of majority or puberty because the father is considered the natural guardian.
  • Custody Under The Christian Law: The Christian religion has to follow the laws and reforms that have been set under Section 41 of the Divorce Act of 1869 for the child’s custody. Also, along with this law, Section 42 and 43 of the same holds the right for deciding upon the child’s custody after the judgment with respect to separation has been passed. The child is given to a better person and is proved to be a better guardian for the child, and the claim could even be denied if the court finds out that both the parents of the child are incompetent of giving a proper environment to the child.
  • Custody Under The Parsi Law The custody of the child under the Parsi law is dealt with by the provisions of the Guardians and Wards Act, 1890. Its main aim is the child’s welfare and can put anything to stake to make sure that the child’s welfare is confirmed.

Divorce and Saving Bank Accounts

Savings bank accounts, the Demat account, the bank locker, everything that’s joint needs to be closed.

If the couple had a joint savings account, the balance is going to be shared equally, irrespective of who had deposited the money. The cunning spouse can choose to transfer all the money from their joint bank account to a separate personal savings account before the divorce/or during the settlement. As one is a joint account holder, they have the right to operate the account and withdraw from it.

They have to all close joint bank accounts. Bank fixed deposits could be redeemed before their maturity, but this could invite a penalty.

Divorce and Loans

In today’s world, joint debt, such as housing and car loans or credit card dues, is part of one’s household finances. So, a divorce settlement is not only going to be about dividing assets but also loans that have been taken together.

In case a couple has taken a joint loan, they are equally liable for repaying the loan. The divorce does not alter their financial liability.

If you have an add-on credit card for the spouse, you could stop it so that they cannot use it. Otherwise, you will have to pay for it.

In case there is a default in the joint loan, it will negatively be impacting the credit history of both spouses. If one is the guarantor for a loan taken by the other partner, and the principal borrower defaults, the guarantor’s credit history is going to be negatively impacted. This would hamper the chances of getting a loan in the future.

One option is to close the loan. A loan giver is not interested in who is given the ownership of the thing bought with a loan; all it wants is the loan to be closed by making the regular payments for the loan. Hence, one can always choose to sell the thing and liquidate other assets for repaying the debt.

The divorce settlement must be clearly spelled out about who repays which loan and who takes care of which expense. It is vital to get the change made in the bank records as well.

Divorce and Investments

A simple way to divide savings into mutual funds, shares, and fixed deposits is to share the proceeds or liquidate them. However, premature liquidation maybe means you might lose out on the returns.

You are not entitled to change the name of the account holders or convert the joint Demat account into a single-holder account. The only option is to open an individual account and transfer all the shares into them. One will have to pay fees for these transactions in case the destination account is not identical (held by the same persons).

For Mutual Funds taken under the joint name, one cannot remove the name from Mutual Funds.