Contentions To Remember Before Taking A Contested Divorce

 

Gauge the health of the marriage. If the argument with the husband spans across 10 days, but you feel things are not bad on the eleventh day, that is a normal ‘wear and tear of marriage’, which does not merit a divorce in the court, says Vandana Shah, a practicing lawyer  |at a family court in Mumbai and founder of 360 Degrees Back to Life, a support group for women undergoing a divorce. Divorce should be a choice that you should make for yourself. You need to ascertain the health of the marriage on your own, as you are living in that marriage. You can seek advice from a marriage counselor or other professionals but steer away from the knee-jerk advice of friends and family who insist on ‘compromise’.
Laws governing divorce: There are personal laws (example: The Hindu Marriage Act, 1955 or the Indian Christian Marriage Act, 1872), which depend on the religions or customs followed to solemnize the marriage. Procedural laws, that is, the Code of Civil Procedure, significantly govern the procedure of divorce and are common to all types of divorces.

Types Of Divorces, Contested Divorce India:

In a ‘contested divorce’, both the husband and wife are not in mutual agreement to get divorced. While one party files the petition seeking a divorce, the other party files a counter, opposing the allegations on the grounds of which the divorce was filed. This is common in marriages with domestic abuse and sexual assaults. In a ‘mutual divorce’, the husband and wife file a divorce petition together after mutually agreeing that they cannot live together.
Documents needed: Carry your marriage certificates, wedding invites, and wedding photographs when meeting the lawyer. When filing a contested divorce in India, WhatsApp conversations, email correspondences, and child’s birth certificates, among others, will make for a stronger case.

How Long Does It Take:

In a mutual divorce, the court generally directs a counseling session and gives a six-month ‘cooling-off period to allow reconciliation. After six months, if the couple confirms their decision to part ways, the court will grant the divorce. In a contested divorce, the court proceedings could generally go beyond six months and it could be two years by the time you get the first relief from the court. It also involves multiple visits to the family court for the hearing.
THE LEGAL ASPECTS

Get A Good Lawyer:

Do not take up your own case, although the prose (for oneself) representation is legally allowed. Go to court and ask around for a good lawyer rather than just asking a friend. The court clerks, too, can help identify the right lawyer. Read up about the lawyers who have been widely written about in the media; they will perform the best, says advocate Vandana. After finding the lawyer, discuss the fee and put the finalized amount on paper. If the lawyer is hesitant to do that, that is not the right lawyer. Most lawyers ask the clients to consult them first, assess the situation of the marriage, and then finalize the fee.

Know The Laws:

You may have the best lawyer, but you need to read up the basic laws on marriage to know your basic rights, understand the various stages of divorce, and how courts function. Vandana recounts a case where a woman approached her five years into her divorce case. She was not aware of the interim maintenance she was entitled to from her husband; her lawyer had not applied for it either.

Awareness of the basic law will also help you assess if certain information should be disclosed to the lawyer. For example, your husband may have opened an account in Mauritius 10 years ago, which means he is moving his money off-shore and that will impact your final settlement. Books like ‘Intimacy Undone: Marriage, Divorce and Family Law in India’ by Malavika Rajkotia and ‘Ex-Files’ by Vandana Shah, and podcasts like Let’s Talk Divorce, too, detail the multiple steps involved.
Once in court, get out fast: A 33-year-old woman, who had approached Vandana, said she wanted out of the marriage in nine months. The case was settled in nine months and the woman walked out of the marriage with Rs 20 crore. A court is for justice and not to teach your husband a lesson. Aim for a short-term settlement. The longer you are in court fighting the case, the chances of settlement are lesser. The settlement in the first year is higher than in the third year.

Free legal aid: For women who cannot afford a private lawyer, free legal aid is available in every courtroom; the service depends on the lawyer. The judge also can recommend a lawyer to help guide you. Women can also approach the state commission for women to help settle matters.