Thinking about taking ‘Divorce’ is much easier than actually taking a ‘Divorce’. As the saying goes, “Everything comes with a price!” It relates well with Divorce also. A loving couple having a beautiful child of 2 years, having enjoyed their blissful marriage tenure of 3 years and then, suddenly unwelcome things happen, the situation gets weird and life brings the couple on the verge of breaking up. The breakthrough will raise many questions like- ‘What will happen to the child, ‘How much will be the alimony?’, ‘Which divorce lawyer to hire?’ or ‘How to obtain apt legal advice for child custody?’ etc.
Divorce often involves consideration and decision on serious legal aspects germinating afterward i.e. alimony, child custody, and legal proceedings. Let’s take all these aspects separately to get a holistic view of this complicated subject:-
As observed, Divorce leads to bitter quarrels between couples who have children/children below the age of 18. These battles are about child custody i.e. after the finalization of the divorce, with who will the child physically stay? Evidently, the custodial parent will hold the primary responsibility of the child in meeting his/her physical, mental and medicinal needs and other parents may have the right to access on such matters or only visitation rights. An important thing/factor to decide is-who can ideally be right for the child’s best interest and welfare?
Divorce litigations have to deal with one very crucial aspect i.e. Alimony. Alimony is a spousal’s right to claim for financial support and maintenance in terms of money, property, etc. after divorce. Interestingly, this concept was endemic when marriage was considered sacred and indissoluble. But, now, the time has empowered women to consider alimony as her right, if she is not planning to marry again. All the religious laws in India govern divorce and the concept of alimony as per the enacted provisions in their respective Acts.
A sneak-peak in the governing laws for the Divorce process in India
In India, we have the Hindu Marriage Act, 1955 which regulates marriage, divorce and relating issues in the case of Hindus, Sikhs, Buddhists, and Jains. Under this Act, the grounds are prescribed for dissolving the solemnized marriage by Divorce which includes cruelty, adultery, desertion, conversion or mental/physical/psychological disorders.
- It also covers the enactment of Alimony which is mainly decided on the basis of both incomes as well as background.
- With respect to Child custody, Hindu Minority & Guardianship Act, 1956 is followed which lays down that the custody of the child upon the age of 5 should stand with the mother unless proved otherwise. Though in the case of children of older age, there is no hard and fast rule. The court decides after hearing all viewpoints, debates, a child’s wishes, and other things. In rare cases, the custody may be given to third persons also, keeping in mind the child’s welfare and best of interest.
Muslims are governed under Muslim Marriage Laws i.e. Dissolution of Muslim Marriage Act, 1939.
- For child custody, the priority right to have the custody lies with the mother only unless she is proved guilty of misconduct. It is also known as ‘Right of Hizanat’ and it is given keeping in mind the best interest of the child. In case the child is son, this right terminates as he reaches the age of 7 and in case of daughters, it stays with them, till they get married. The law differs from different schools of law in Muslims.
Parsis follow the Parsi Marriage and Divorce Act, 1936 when they are seeking to get a divorce.
- Under this Act, one thing that is considered above all before deciding on child custody is his/her welfare. The Guardian and wards Act, 1890 deals with custody issues.
Christians and all others are governed under the Indian Divorce Act, 1869.
- Section 41 of this Act gives powers to the court to make orders with regard to child custody in any suit of separation, keeping in mind the best interest and welfare of the child/children.
- Section 37 provides the power to order permanent alimony whereby the court decides the amount and conditions of alimony to financially secure the spouse.
Now, a big question…How to find the right divorce lawyer?
Finding a right lawyer can be a really challenging task as it involves trust, right intuitive skills, some legal research to know your rights and the law broadly, and of course monetary support. Let’s see what to do in making the right choice:-
- Surf internet before hiring the lawyer:
Seek online legal advice on divorce laws from legal portals and gain information pertaining to it. It makes you aware of the subject about possible ways of settlement, laws relating to custody, alimony and other relating issues. You can post your legal query here, and get free legal advice from subject matter expert lawyers.
- Seek the best lawyers in your town:
Make a list of divorce lawyers around your zone through the internet. Don’t just rely on references from your friends, colleagues, and relatives. You can search for a lawyer here.
- Check out his/her professional background:
Do check out his/her client list, experience in divorce cases, his/her membership number and other vital questions.
- Talk to the Lawyer:
Hire only after consulting a few lawyers and talking to him/her about your requirements. Ask queries relating to the process, division of assets, custody, etc. It will help you judge the lawyer’s expertise.
- Check the lawyer’s connections with your spouse:
Never hire a lawyer if he/she knows your wife as it will affect his/her prejudice and make him/her give biased opinions. It’s an important point which people often overlook.
If divorce is inevitable, it is better to make out of the court settlements by way of negotiation and conciliation. Sometimes, the situation gets out of hand and negotiation might not be on the table. Either way, take legal advice from specialist lawyers on the related processes. It will help you save your legal cost, hard-times in court and help move on as soon as possible.