Family matters are handled with confidentiality and without pressure to litigate. Where a negotiated resolution is realistic, it is discussed before proceedings are advised.
Divorce and judicial separation
A petition for dissolution of marriage is filed before the family court having jurisdiction, ordinarily where the marriage was solemnised, where the parties last resided together, or where the respondent resides. The grounds available depend on the personal law applicable to the parties.
Where both parties agree, a petition by mutual consent is ordinarily the least contentious course. It requires agreement on the terms of separation, including maintenance, custody and the return of belongings, and involves a statutory interval between the two stages of the proceeding. The stages, grounds and documents are set out in detail on the divorce lawyer page.
Maintenance and interim relief
Maintenance may be claimed by a spouse who is unable to maintain herself or himself, and by children, through proceedings under the criminal procedure code, the applicable personal law, or the domestic violence legislation. Interim maintenance and litigation expenses may be granted while the main proceeding is pending.
The amount is determined on the income, assets and liabilities of both parties, the standard of living during the marriage, and the needs of the dependants. Salary records, tax returns, bank statements and evidence of assets are therefore central. See the maintenance case page for the provisions, quantum and execution of maintenance orders.
Custody, guardianship and visitation
In every custody matter the welfare of the child is the paramount consideration. The court examines the age and needs of the child, the capacity of each parent, the child's schooling and stability, and, where the child is of sufficient understanding, the child's own preference.
Orders may provide for custody with one parent and visitation for the other, arrangements during vacations, or in some cases shared arrangements. Interim arrangements are frequently made while the petition is pending.
Domestic violence proceedings
The Protection of Women from Domestic Violence Act, 2005 provides for protection orders, residence orders, monetary relief, custody orders and compensation. Proceedings are before the Magistrate and are civil in nature, though breach of a protection order carries consequences. The reliefs and procedure are explained on the domestic violence page.
Persons responding to such proceedings are entitled to be heard and to place their own material before the court. Where allegations extend to criminal complaints against relatives, the remedies discussed on the quash petition page and the anticipatory bail page may become relevant.
Restitution, nullity and related petitions
Other petitions before the family court include restitution of conjugal rights, a declaration that a marriage is null and void, and petitions relating to the return of articles given at the time of marriage. Applications for transfer of a matrimonial proceeding from one court to another are also common where the parties reside in different places.
Mediation and settlement
Family courts refer matters to mediation as a matter of course, and a substantial number are resolved there. A settlement covering divorce, maintenance, custody and property is recorded before the court and becomes enforceable.
Settlement is not appropriate in every case, particularly where safety is a concern. Whether to pursue it is discussed at the consultation stage on the facts.
Documents to bring
- Marriage certificate or proof of solemnisation, and photographs.
- Identity and address proof of both parties.
- Birth certificates and school records of children.
- Income documents — salary slips, tax returns, bank statements.
- Details of property, jewellery and articles in dispute.
- Copies of any complaint, notice or proceeding already initiated.
- Correspondence between the parties or their families.
Frequently Asked Questions
- How long does a mutual consent divorce take?
- It involves two stages with a statutory interval between them, which the court may in appropriate cases consider waiving. The overall period depends on the court's schedule and the parties' compliance.
- Can maintenance be claimed while the divorce is pending?
- Yes. Interim maintenance and litigation expenses may be sought during the pendency of the proceeding.
- Are family court proceedings public?
- Family court proceedings are ordinarily held in camera, and the record is not open in the way an ordinary civil proceeding is.