Divorce Legal Support – Different Divorce Laws Applicable On NRIs
Marriages are said to be the happiest phase in the lives of couples. Unfortunately, that does not seem to be the case with all marriages, as many couples seek separation from their life partners.
There can be several reasons for a divorce to happen. Generally, the situations go beyond the tolerance limits that it becomes very hard to continue with the relationship. When that happens, you will really need a way to come out of the marriage.
Divorce is the legal means that is available for you to get relief from the extended trauma in your married life, and lead a new life again. If you are an NRI, you will need to understand the different divorce laws.
About NRI divorce case
There is seen a greater tendency in many Indian women to marry NRIs, because it promises good financial security. However, in some of the cases, they are the unfortunate ones and get easily deserted.
This fast is on the basis of the study conducted on married NRI’s. Please be reminded that there are no special divorce laws made for NRIs in specific. Therefore, it creates a lot of confusion in cases of personal laws such as marriage, adoption, divorce, etc. It is advised to be safe, practical, and sensible at the time of selecting your life partner.
What is a mutual consent divorce?
Divorce is regarded as the complete termination of the marriage agreement between 2 partners. In India, it is something that is heavily glared upon by the society as well as by the religion. The social stigma associated with a divorce constitutes to the emotional stress in a person who goes through this trying time of his/her life. It is really a life changing event.
When both spouses in a marriage mutually agree to take a divorce, then it is termed as a mutual consent divorce. Any married couple who is seeking to file for a divorce petition will need to stick to the court jurisdiction.
Jurisdiction implies the authority of the court to provide a legitimate decree. So, the court should have the control to deal with the divorce matter beforehand. If not, then any decree provided by them would be considered as invalid. To be on the safer side, it is better to hire the lawyers who specialize in NRI divorce legal support.
On what factors does the divorce depend?
In the case of divorces, the court will typically be the one in the town or city, where both the spouses got married. There can be some variations though:
- The place where the marriage was conducted (solemnized or registered).
- The place where the couple stayed together for the last time.
- The place where the spouse resides when he files a divorce petition.
On the basis of the above conditions, you need to reach the family court of the place where you can easily file a joint divorce petition. The court is expected to come up with the fair judgment after going through all the divorce procedure.
What are the options to file a divorce when both spouses are NRIs?
When both spouses are NRIs, there are two options available for filing a divorce. You can either file a divorce in a foreign country where you stay, or you can file it in India.
What is the method to get a divorce in India?
People who have their marriage performed as per the respective personal Indian laws can file the petition for their divorce in the family court of the place where they got married. Divorce petition can also be filed where you or your spouse last resided, or are currently residing.
What is the basis for divorce?
For a divorce petition to get filed successfully for NRIs, it is important that it happens through a mutual consent. Recently the Supreme Court has made it a lot easier for mutual consent divorces. The usual six months of time period for getting a mutual divorce is not essential under certain circumstances.
Is it mandatory for the NRI to stay in India till the time divorce does not get finalized?
No, it is not essential for a person to stay in the country till completion of the case. You can even execute a “special power of attorney” in favor of another person, but it can be only after the presentation of the plea. As a proof or evidence, you will need to come to India. When your divorce is a mutual consent divorce, you would also require to be present in the court on your judgment day.
Procedure of divorce filing in India
It is a very smooth and safe way to file a divorce petition in India. Once an NRI files a divorce petition, courts will get a petition from them for a ”mutual consent divorce”. This is received along with the statements of both individuals in regards to the mutual decision of divorcing.
For objective of appearance in court hearings, if one of the parties is not able to be present at that time, then a “power of attorney” can be given to a person in the family. Once the statements of both the individuals who are filing for divorce gets recorded, the primary motion is granted.
Once the primary motion is granted, a time period of around six months is provided as a provisional period for individuals to think again on their consensus for the divorce. In this time, either of the parties has the right to withdraw their consent. If no party does it, then the 2nd stage of motion gets started. In this stage, the individuals need to be present in order to approve their consent. Once this happens, divorce is granted to them.
Will an Indian Decree be recognizable by a foreign country?
It is essential to consider that divorce verdict that are passed by Indian courts are legitimate in other countries. There is no foreign court that would question you if the divorce decree is passed by an Indian court, because you got married in India in the first place.
What will you have to do if you reside in a foreign country?
In order to file a petition for divorce, when you stay in a foreign country, it has to be a mutual consent divorce. Unfortunately, legal system in India does not recognize “Ex parte divorce petitions”. In such petitions, only one of the spouses participates.
If you reside in a foreign country, then you need to apply for a divorce as per the foreign marriage law that prevails in the place where you stay. Later, you have to get a declaration as per the “Family Courts Act” to get your foreign judgment authorized in India.
What are exceptions to filing a divorce petition in a foreign country?
There are certain exceptions when foreign judgments don’t apply in India. If you are looking to get your divorce petition to get recognized in India, then it has to be a “mutually agreed divorce. In specific cases, the divorce issued by a foreign court won’t be recognized in India.
All of these cases are covered by the exceptions listed by the “Indian Code of Civil Procedure”. They work in accordance with a foreign judgment.
Following are the exceptions that are covered under the following situations.
- Where the divorce judgment is not pronounced by the “Court of competent jurisdiction”
- This covers all those divorce cases where the jurisdiction has no right to take up the case and form a decision on it. This impacts the rights of both the parties.
- In cases where the divorce judgment is not given on the basis of the advantages of the case. This covers all those situations where the judge forms a decision with proper application of his mind.
- Proceedings found on a wrong view of an international law, or refusal to identify the Indian law in cases in which such divorce law is applicable.
- When the divorce proceedings are not as per the principles of natural justice. This implies that the divorce proceedings have been biased, or a single party established case, where and the other party wasn’t given an opportunity to get heard.
- When the decree is obtained through fraudulent means. This is an old and established principle of “Private International Law”. A foreign judgment that is obtained by deception and illegible means, can’t prevent you from filing a divorce suit anywhere else.
- Where the divorce case sustains a claim that is initiated on breaking of any law that is in action in India. This implies that a foreign divorce case that is unrecognized by the Indian law, or based on a reasoning in contradiction to Indian laws.
NRI Divorce Laws where only single spouse is an NRI
There can arise two situations. The applicable laws for NRIs divorce will differ as per the circumstance. Those people who have got married in India, will have to perform the same procedure. On the other hand, people who have got married in any other foreign country, will have to go according to the respective foreign marriage law that is applicable in that place.
They say marriages are made in heaven. It is the most beautiful time that everyone wishes to experience once in their life. The sad part is, not each and every marriage is destined for a successful and happy ending. Those that fail to survive, end up in divorces.
The divorce laws for an NRI is not same as that of a normal resident Indian. For amicable and efficient accomplishment of divorce, it is important to get a good understanding about NRI divorce laws.