Should I Divorce in England & Wales or in India?

 

You may be someone who is looking to get divorced and you may have the choice of starting the process in either England & Wales or in India. This might be due to your domicile, nationality or place of residence. In this blog FLiP Director Charlotte Symes and Dr Pinky Anand and Saudamini Sharma discuss the different approaches of the two countries to divorce. This might be due to your domicile, nationality or place of residence. In this blog FLiP Director Charlotte Symes and Dr Pinky Anand and Saudamini Sharma discuss the different approaches of the two countries to divorce.

When can I start a divorce application?

In England & Wales, you must be married for one year before you can make an application for divorce. Marriage includes a civil partnership. The original or a certified copy of the marriage certificate will be required for the divorce application.

In India too, you must be married for one year before you can make an application for divorce, under the Hindu Law, Foreign Marriage Act, 1969, The Divorce Act, 1869, The Parsi Marriage and Divorce Act, 1936 and the Special Marriage Act, 1954 unless extraordinary hardship is proved, and a leave is sought from the Court. Another condition under Hindu law and The Divorce Act, applicable to Christians, is that the couple must be living separately for one year before a petition for divorce can be filed. India’s marriage laws are religious in application, so different religions have different eligibility for marriage. For example, since a Muslim marriage is regarded as a contract between the parties, they may file for a divorce whenever the marriage breaks down and there is no minimum period of marriage.

Who can make a divorce application?

In England & Wales, you must meet one of the following criteria:

  • You and your spouse are habitually resident in England & Wales;
  • You were both last habitually resident in England & Wales and one of you continues to reside there;
  • The respondent is habitually resident in England & Wales;
  • The applicant is habitually resident in England & Wales and has resided there for at least 6 months immediately before the application is made;
  • You and your spouse are domiciled in England & Wales; and/or
  • Either of you is domiciled in England & Wales.

In India, since the laws are religion based, each relevant Act should be considered separately:

  1. The Hindu Marriage Act: This Act applies to any Hindu who is domiciled within the territories of India, even if he/she resides outside of India. The Act applies to the following religions and divorce may be filed by these religions:
  • to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
  • to any person who is a Buddhist, Jaina or Sikh by religion; and
  • to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
  1. The Special Marriage Act, 1954:

Any person whose marriage is registered under The Special Marriage Act within India.

  1. The Foreign Marriage Act, 1969:

Any couple, one of whom is at least a citizen of India and the marriage is solemnised under this Act.

  1. The Divorce Act, 1869:

Any couple who is a Christian and the marriage is solemnised under the Christian Marriage Act, 1872.

  1. The Parsi Marriage and Divorce Act, 1936:

Any couple who is a Parsi and the marriage is solemnised under this Act.

Fault or no-fault based divorce?

In England & Wales there is no longer a fault-based divorce system. There is only one ground for divorce which is the irretrievable breakdown of the marriage and there is no requirement or scope for giving evidence of that.

In India, the concept of irretrievable breakdown of marriage is not recognised. The parties must prove fault of the other party to be able to get a divorce and the grounds are specified under each law that govern the parties. There is, however, provision for a mutual agreement to divorce under all respective laws.

Types of application

In England & Wales the application can be made online.

An application can be either as a sole application where one spouse makes the application and is in control of the timescales. The respondent would need to acknowledge receipt of the divorce application by completing an acknowledgment of service within seven days of receipt of the application. The respondent must be served with a copy of the divorce application either by the court or by the applicant/their solicitor.

It is also possible for spouses to make a joint application of the spouses (with one being applicant 1 and one being applicant 2). A joint application can become a sole application at conditional order or final order stage. This means that if the respondent delays in acknowledging and progressing the divorce application, the applicant can take back control of the timescales. Each applicant must still acknowledge receipt of the divorce application once they have received notice of the divorce proceedings from the court.

In India, a suit for divorce must be filed in the family court. The respondent is served a copy of the suit after notice is granted and the trial begins. It is also possible to file a joint petition for divorce if the parties mutually agree to divorce. All filings whether adversarial or mutual are to be completed online as well as in hard copies to the court of appropriate jurisdiction.

Can a divorce application be defended?

In England & Wales it is not possible to defend a divorce application; you cannot prevent it and the statement of irretrievable breakdown of the marriage in the application is all the evidence that is required.

In India, public policy does not allow divorce under the head of irretrievable breakdown of marriage and applies the fault theory to the breakdown of marriages. Unless the applications are made with mutual consent, divorce is vehemently defended.

What is the timescale?

In England & Wales after the divorce application has been made, the spouses enter a 20-week holding period until the conditional order is made. This is a period for reflection and it allows time for the spouses to discuss their finances and arrangements for their children (which are separate distinct processes).

The court has the power to reduce the holding period but only in very limited circumstances, such as if one spouse is terminally ill.

The court will the list a date for the pronouncement of the conditional order. Once that is granted, there will be a further waiting period before the applicant(s) can apply for the final order. The earliest that the application for the final order can be made is six weeks and one day after the date of the conditional order. It is during this period that spouses will usually submit the financial order to the court for approval. The application for the final order is the very last step in the divorce process and once made, that means that the spouses are legally divorced (not before).

There are no timescales in India for a divorce since, if it is adversarial litigation, then questions of maintenance, child custody and other ancillary issues are decided before a divorce is pronounced. It is also possible to appeal against the judgment of divorce to appellate courts and the timescales can range anywhere from three years to three decades.

In a petition for mutual divorce, once a petition is filed, there is a time given of six months, which may be extended up to 18 months at the request of the parties, to allow time to reconsider, after which divorce may be granted. The parties may also file a waiver of the six month period, which may be accepted on the discretion of the Court.

What is the cost?

In England & Wales the court fee is £593 and that is paid upon submission of the form. The courts will generally not make any order for costs unless one spouse’s conduct is particularly poor: evading service of the application for example and increasing the other spouses’ costs.

There are no costs to a divorce in India, unless the parties mutually agree to separate and such settlements are a part of the divorce negotiations.

Any conclusions?

For a no-fault divorce, England & Wales is definitely the place to be. Neither country offers a process that is particularly quick, and India  won’t cost you anything.

Before making any decision, you must consider each country’s approach to the settlement of your finances and take local legal advice, as this will likely be the main factor in your decision about where to start your divorce.

About the Authors:

Charlotte Symes is a director at FLiP. She is an experienced family solicitor, accredited mediator and collaborative practitioner. She deals with complex financial issues arising from divorce and separation and supports parents in relation to arrangements for their children. Her work has a strong international dimension. She speaks French and has particular expertise in advising on matters with a French element. She is recommended for her family law expertise in both the Legal 500 directory and the Spear’s 500 Index.

Dr Pinky Anand is a Senior Advocate at the Indian Bar. She was called to the Indian Bar in 1980 and has MA from Harvard. She is an expert in constitutional, commercial, private international law and arbitration, having appeared in some of the landmark cases before the High Courts and the Supreme Court of India. She has had a distinguished career, been the recipient of several national and international awards and has authored several books. She is the second woman in India to have been appointed to the office of the Additional Solicitor General.

Saudamini Sharma is an advocate specialising family law. She was formerly an Advocate of the Chambers of Dr Pinky Anand.