Marriage in India - File for Divorce in Australia?

Discussion in 'Family Law Forum' started by Chiranjeeve, 25 May 2014.

  1. Chiranjeeve

    Chiranjeeve Member

    25 May 2014
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    1. Can I file divorce from here as my marriage is done overseas (India)?
    If yes, for the above question,
    2. How can my partner back in India attend the hearing or challenge the divorce petition filed from here? What are all the documents required to file a divorce?
    4. What will be the estimated charges?
    5. What are the timelines I should look at in getting a divorce if there is no counter or challenge from my partner?
    6. Any implications on my Australian PR (permanent residency)?
    7. Can I get married while the divorce case is in progress?
    8. While the divorce case in progress or after the divorce, can this be challenged or countered in India? If yes, what measures I can take with the help of Australian legal system?
    9. How many hearings will be held and should I need to be attending in person for every hearing?
    10. I am a contractor and would I be eligible for any fee concessions?
    11. My marriage is over as per India's Hindu Marriage Act and after granting divorce in Australia, if I visit India and any legal problems arise with respect to the divorce granted, will Australian law or government help me?

    Thanks in advance for looking into my questions.
  2. rebeccag

    rebeccag Well-Known Member

    8 April 2014
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    G'day Chiranjeeve,

    The Family Law Courts 'Divorce' page provides information about divorcing in Australia if you were married overseas. Have you checked the sitte out? Most relevant to your questions, it provides:
    I married overseas – can I get a divorce in Australia?
    If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
    • regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
    • are an Australia citizen by birth or descent
    • are an Australia citizen by grant of an Australia citizenship
    • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
    You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file:
    • an English translation of it, and
    • an affidavit from the translator which:
    • states his or her qualifications to translate
    • attaches a copy of the marriage certificate
    • attaches the translated marriage certificate
    • states that the translation is an accurate translation of the marriage certificate, and
    • states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.
    More information can be found in the Affidavit translation of marriage certificate form under the Forms section of this website.

    I can’t find my spouse to serve a divorce application, what do I do?
    If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:
    • substituted service, or
    • dispensation of service.
    More information can be found in the publication Are you having trouble serving your divorce application? under the Publications section of this website.

    I have applied for a divorce, is it safe to set a wedding date for my new marriage?
    You should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing, however, you should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.

    If you intend to remarry, you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date, and comply with other requirements of the Marriage Act 1961. As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show a copy of the divorce order to the marriage celebrant before the wedding can take place.

    Can I oppose a divorce application?
    If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
    • there has not been 12 months separation as alleged in the application, or
    • the court does not have jurisdiction.
    If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce. If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.

    In relation to your point 6, I don't see how the divorce would affect your Australian permanent residency (unless for some reason its reliant on you being married/being married to an Australian?).

    In relation to your point 10, there are limited circumstances where you can apply for a fee reduction (mainly if you hold certain government concession cards or are in severe financial hardship), merely being a contractor doesn't seem to be enough to justify a reduced fee. See the Family Law Courts 'Guidelines for fee reduction' page.

    In relation to your last point, I don't know about Indian law. You'd be divorced under Australian law, but you'd have to read the Hindu Marriage Act - particularly Section 13 - to see how it would apply to you. Or get some personalised advice from a family lawyer who is familiar with the process under the Hindu Marriage Act. Here is an interesting article called “Legally divorced abroad yet married in India”.

    Let us know how you go.
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  3. Rama

    Rama Member

    19 July 2014
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    Hi Rebecca, I need your advice.

    Long story short

    I am an Australian Citizen from an Indian background and I got married June 2013 , I was a Australian permanent resident during marriage but I got citizenship later and it's been only a year but things din't work out very well.

    We went back to India to try and talk through it on insistence of elderly family members. I went to explain what happened but she had told them their version and completely disagreed what I said claiming I am lying and I thought this wasn't gonna work so I took off to Australia.

    Now the girls family have filed domestic violence and dowry harassment cases against me and my family. Now by the way things are going they sound extremely vindictive and no matter what they want to make me go to India and they would be happy if I had to step court and do what ever it takes to put me in jail and they would be happy out of it.

    Presently I live in Australia and I did a bit of research and found about extradition treaty signed between India and Australia. If they are so vindictive does it mean they can misuse the law and get me to India to take revenge on me?

    Right now they are demanding for 30 lakh rupees or something and they will retract the cases they filed on us but I don't see it being very fair.

    What if I choose to not go for the court proceedings in India. Because we are only separated for 3 months now and cannot apply for a divorce by mutual consent both in India as well as Australian rules. So I am puzzled where it's all gonna lead and how much more they gonna spoil the peace of my family.

    If you could please advice, on the possibilities of forcing me to go to India for the hearings, will be very helpful.

    Also what would the best legal advice on my current scenario and the safe way of going about it?

    Thank you in advance
  4. Ausnd

    Ausnd Member

    7 February 2016
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    Hi Rama, hope everything is sorted out.. Just wondering, how do you expect people to understand what you have written? Instead of writing your whole life history, isn't it easier to just ask the answers to the questions? Who understands the meaning of 30 lakh rupees?
  5. Ausnd

    Ausnd Member

    7 February 2016
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    Just in case anyone reads this article in the future,

    1) Australian divorce requires you and your partner to be separated for at least 1 year and there may be 1 short attempt to reconcile in the 1 year. Divorce is granted on the "Irretrievably broken marriage" grounds. You don't have to prove your partner's infidelity or harassment, etc... For all legal purposes, it's good to have a written letter/ email etc sent to the partner to say that you are separating from your partner and keep it as proof.

    Any partner or both partners can make the divorce application and the other partner does not have to sign it etc. As long as you have met the 1-year separation requirement and you don't have kids or property to be sorted, your divorce will be straight forward. Yes, there are always ways to prolong a case in court, like disputing date of separation, DV issues etc.

    2) Australian divorce is only valid in India if the divorce is mutually signed or the partner is present in Australia when the divorce was granted and has had the opportunity to dispute/ fight the case etc. So, you can apply for a one-sided divorce but the partner should have had the opportunity to dispute it. Divorce granted on the grounds of " irretrievably broken marriage" is generally not valid in India but since the partner has had the opportunity to dispute it is considered valid. So no ex parte divorce with the partner being in India etc.

    3) This comment is only relevant for men...

    As far as Indian dowry/DV laws go, they are in general archaic and can drag on for many many years/decades. It's a known fact that the legal system and criminal laws are used by legal fraternity/ law enforcement and the women to extract money from men. Strangely these laws only allow women to extract money and not men.. If you have not really demanded dowry and don't have kids and your wife is able/ deemed to be able to support herself you have nothing to worry about.

    If your wife has filed all the fake criminal cases, you and your family will go through hell but hope most bad times are only temporary. If you are bent on not paying the dowry doll any money, you will be a loser but still a winner... Extradition treaties won't be used for dowry cases etc.. Don't worry. But still the best way out is to take 6 months off from everything in Australia and go to India, start to fight those cases. People will tell you things like hiding in Australia, don't come to India.

    Get a lawyer in India and file for bail and then get back your passport(if it's impounded etc). You may even have to pay a bribe to Indian officials so be financially prepared for that. Yes, all this time you can also keep negotiating with your dowry doll about how much you will pay her.

    Once you get bail and get back your passport you don't have to look back. Come back to Australia, find a suitable partner at least, this time, don't commit the same mistakes and live happily. The court cases in India will drag on for decades and the dowry doll won't win her fake cases anyways. At the end of her life on the deathbed, she will surely remember the mistakes of her life, you will be one and, of course, her useless ego.

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