Adv. Pratibha Bangera is a practicing divorce and family court lawyer
and throws light on how to handle divorce smartly.
Q. What is the legal
way to apply for mutual divorce?
You don't require a court to grant marriage
certificate, but a legal and valid mutual consent divorce can happen only and
if a family court grants permission for same.
While there are codified sections and
provisions for people who have married under the Hindu, Christian, Parsi or
special marriage laws, the Muslim, Jewish and other customary marriages do not
have a codified section for mutual divorce in India.
Q. Which type of
people prefer mutual divorce in comparison to contested cases?
People who do not want to go through the ugly
process of allegations and legal grounds, prefer ending any remaining
unpleasantness by opting for "by consent divorce". Also in some
cases, the people are young and of remarriage-able age and prefer to avoid
litigation battles and bitterness and choose to end their marriage
expeditiously.
Also, the very rich and famous celebrities
prefer a quiet and peaceful closure to an unpleasant situation.
Q . Can celebrity
divorce couples avoid public appearance in court?
With the rising number of celebrity artistes
being recognized in court, not all parties are accomodated "in
Chambers" of judge. There are no special rules in family court but the
court can adjust such couples in Chambers to avoid press and harrasment by
people wanting to take autographs or being photographed even in such places .
Q. What precautions
should a husband take while entering for a mutual consent divorce?
A woman thinks faster than men which has been
a proven fact. So avoid delays because that is the main reason a woman reaches
out for a contested petition. Any hurtful statements during discussions should
be avoided and unless the demand is too unreasonable, offer to address all her
concerns. Offer best child support voluntarily and have written terms for
access and visitation.
Q. What are the steps
to be taken by the wife heading for mutual divorce?
Avoid emotional expression or passive
decisions. Have a supporting expense sheet if you have children. Also work
towards a backup plan for being self sustained because any amount of alimony or
maintenance is not enough for lifetime and it is impractical to expect that
divorce can be your life cover.
Children should be the area of highest concern
for both parents.
Most marriages break down because the
litigants waste precious time in blaming one another. Most divorce proceedings
are also delayed due to same reasons.
Q. Can a divorce be
concluded in just one day?
It takes 6 months mandatory waiting time once
you initiate a mutual consent divorce.. But one can prefer an advance petition
and ask for waiver of 6 months statutory period subject to fulfilment of
certain conditions as per guidelines set by the Supreme Court
Q. Is it better to
have the terms ready before filing for divorce or let the court decide?
It is always better to resolve all disputes by
holding lengthy joint meetings in a legally competent person’s office and not
make too many changes thereafter.
Also stick to legal points rather than
involving too many people who may go off tangent and spoil the case further.
Contested cases are expensive and time
consuming especially if you are not well advised. Pay for mediation and get the
best solution than getting mentally embroiled in a divorce saga.
Albeit some cases are only fit for contested
divorce and deserving of lenghty trials but by and large all matters even
contested cases get converted midway to mutual divorce.
Hence, detailed discussions on all points of
maintenance, custody or residence and visitation rights should be clearly
understood by both parties to avoid future conflicts.
Some couples who don't resolve these points
often end up with arguments in court before the counselor. And even police
intervention is required.
One does need to develop enough patience to
achieve a smooth closure.
Q. Can divorcing
parents get joint child custody?
There is no legal term like
joint custody. While one parent gets custody, other parent is granted
visitation rights. The primary guardianship goes to the person who takes
custody while both parents are providers.
Q. Can a parent be
forced to visit a child?
No there is no legal provision for that.
Parent can only be legally forced to provide financial support.
Q. Can a child inhert
rights to parental property after divorce?
Yes, the child has succession rights to
properties owned by both parents. However if the parent has remarried, the
first line of succession goes to the surviving spouse along with other
surviving children.
Q. How much alimony
can a wife ask for in a consent divorce?
These terms are discussed and settled upon
mutual understanding. The husband can also give more than what he earns if he
has means to pay. The court is not concerned from where the money has
come.
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