Over the past several decades, the nature of marriage has changed in India since this institution first came into practice. Due to urbanization, emerging issues in the matrimonial cycle have led marital researchers and Lawyers ask “What has changed about the nature of marriage that makes it less appealing to some, less satisfying to others and generally less stable?” There is a general decline in respect to the institution leading to separation and divorce. In most cases children are the only reason people consider staying in an unhealthy marriage.
A person making a decision to get a divorce has already been through a lot of mental turmoil and the lack of knowledge towards the whole legal process can further emotionally scar oneself and their loved ones. Therefore having proper information and efficient legal consultation can help amicably settle the dispute and empower people to optimistically move forward in their lives. Hence, here we have Advocate Sachin Daga, Managing Partner Daga Legal shedding some light on some of the most frequently asked questions.
My Powai (MP): What are the reasons for marital conflicts in India?
Sachin Daga (SD) : Domestic violence, abuse and infidelity are not the only reasons why marriages break. There are many more things that can go wrong between a married couple that the rest of the world cannot see. Sometimes two people realize they are just not compatible.
Divorce data from Family court shows the number of divorce applications has doubled and even tripled in cities like Mumbai, Delhi, Bengaluru, Kolkata and Lucknow over past five years.
They cite a range of reasons: The waning influence of the family and joint family; the growing psychological and financial independence of women; late marriages resulting in greater reluctance to compromise or change set ways and lifestyles, not wanting to bear children among others.
MP: Seriously how do you transform a failing marriage into a great marriage? Is that even possible? How can you avoid divorce? There are series of questions, which comes into mind:
- Is your partner not loving and considerate ?
- Do you feel you cannot communicate with your partner ?
- Do you feel your marriage is stagnant?
- Do you think you can do much better once you are free from current mistake?
SD: Ultimately the answer lies with you and your decision. Divorce is a stressful process that can easily bring out the worst in people. Some people see divorce as a way to seek revenge on a spouse by seizing money and assets whereas some take divorce as an approach to amicably settle their conflict towards the best interest of themselves and their children. Some of the key points, which one should remember before divorce proceedings are as follows:
- Don't let Emotions Lead your Financial Decisions.
- Everything is Divisible and is fair Game
- Gather Key Evidence before Filing for Divorce
- Get Property valued before you part ways
- Consider Mediating your Divorce
- Understand Debt Obligations
- Design a Joint parenting Arrangement Wisely
- The Division of property can be complex
MP: The entire procedure of divorce is deemed daunting, lengthy and cumbersome by many, what measures could be taken to make it less painstaking than it already is?
SD: Generally the court requires that a couple live separately for a year before they seek divorce, once the papers are filed an extra six months of cool-off period is advised, to get counselling to make sure that the people asking for a divorce understand the gravity of this ask and have no regrets later. This length can be reduced if a couple files a joint petition with mutual consent.
MP: Given that children are the most vulnerable components in a divorce, how would you suggest the parties at divorce can protect the well-being of their offspring in such a situation?
SD: Younger children lack the maturity to understand the complexities of a divorce and hence it would be better advised that the parents opt for divorce after their children are past their years of adolescence. Both the parties need to understand that the rift, which exists, is due to their personal differences and that their children shouldn’t face the brunt of it. Joint custody should be preferred as it gives both the parents the opportunity to spend quality time with their children, have equal say in the decisions regarding their children and the burden of the expenses is also shared fairly keeping the welfare of children in mind as utmost priority.
MP: Another major concern is the topic of maintenance and division of property, what advice would you give to deal with such financial issues that arise during divorce proceedings?
SD: The first step would be to assess the co- owned finances including immovable and movable property and decide on its division. Post this decision the same should be documented and presented to the court for expedited proceedings. Spouse with no or less source of income at the time of divorce is considered for maintenance wherein the compensation offered is decided on the basis of lifestyle and earning capacity of the other person. In India, it is permissible under law for the spouse to seek interim maintenance during the pendency of the proceedings, which is adjudicated by the court based on the merits of the case.
MP: What would be your parting advice for couples to keep their divorce procedure clean and amicable?
SD: Couples in India and around the world, are waking up to the realisation that divorces can be amicable and that both partners do not necessarily have to end up as enemies post their separation. In the best of interests of all the people affected by this process, it would be suggested that the couple doesn’t think of divorce as an instrument for revenge or retribution but keep their pride aside and not make the situation ugly by defaming the opposite side for personal satisfaction. Instead they should accept the unfortunate predicament that they are in and take steps that help all of them get out of this situation unscathed and move on with their lives on a positive note.
(Sachin Daga is a practicing lawyer in the Bombay High Court who can be reached at email@example.com or at (022-2857 3870) for answering your legal queries.
Mention “My Powai-Query” in the subject line of the email)