Family Law

In case you want to get a divorce in the foreign country where you reside, it must be a mutual consent divorce. The Indian legal system does not recognise Ex party divorce orders, i.e., where only spouse participates. You can apply for a divorce according to the foreign marriage law prevailing in the country where you reside. Afterwards, you need to seek a declaration in accordance with the Family Courts Act to make the foreign judgement valid in India. This declaration can be sought only in the family court which has the jurisdiction to try the case.

The grounds for divorce depend on the state, and may be based on no-fault or fault. A no-fault divorce is available in some form in all states; many states also have fault-based grounds as an additional option. A no-fault divorce is one in which neither the husband nor the wife officially blames the other for the breakdown of the marriage. Common bases for no-fault divorce are “irreconcilable differences,” “irretrievable breakdown” or “incompatibility.” Another common basis for no-fault divorce is that the parties have lived separately for a certain period of time (varies from state to state) with the intent that the separation be permanent. The list of grounds for a fault-based divorce may include: adultery, physical cruelty, mental cruelty, attempted murder, desertion, habitual drunkenness, use of addictive drugs, insanity, impotency, and infection of one’s spouse with venereal disease.

Generally, spouses are free to divide their property as they see fit in what is called a “marital settlement agreement,” which is a contract between the husband and the wife that divides property and debts and resolves other issues of the divorce. Although many divorces begin with a high level of acrimony, a substantial majority are settled without the need for a judge to decide property or other issues. However, if the division of property cannot be settled, then the court must make the determination. Laws vary from state to state. As a starting point, many states allow both parties to keep their “nonmarital” or “separate” property.

In dividing marital or community property, the laws vary from state to state. Some states are community property states. Some states, such as California, believe that marital property should be divided equally unless a premarital agreement specifies otherwise. Most states, however, apply the concept of “equitable distribution,” which means the court divides the marital property as it thinks fair. That division may be 50-50 or something else. Some of the factors considered include: the amount of nomarital property each spouse has; each spouse’s earning power; services as a homemaker; waste and dissipation; fault; duration of the marriage; and age and health of the parties.