Getting a divorce can be a painful process. While the emotional struggle is already overwhelming, the legal process can be difficult to handle. However, whether you are getting a divorce or thinking about it, it is essential to know your legal rights.
It isn’t supposed to be fun when you get a divorce, but it needn’t be as difficult as it possible either. Only when you know your rights can you protect them. Also, knowing what life looks like during and after a divorce can prepare you for what is about to come.
Grounds for Divorce
Both men and women can apply for divorce under the following grounds:
- Mutual Consent
- Mental disorder
- Communicable disease
- Renunciation of the world
- When the spouse is presumed dead
Based on any of these grounds, a petition for divorced can be filed in a court. Once the divorce proceedings begin, the three most contested areas are maintenance, property and child custody. We will discuss the rights of the parties in these regards elaborately.
Right to Maintenance
Maintenance is an amount one spouse has to pay another after divorce to ensure they are financially taken care of. The idea of maintenance was started because women were completely reliant on men financially and this made them stay in a bad marriage. Things are changing now and women are growing to be financially capable of taking care of themselves.
So, now maintenance can not only be claimed by a woman but can also be claimed by a man under the Hindu Marriage Act, 1955. Only the wife could claim maintenance under the Special Marriages Act, 1954, but that is changing now too.
Conditions to claim maintenance
- The marriage is legally valid.
- The person who supported the household has stopped providing for the spouse.
- The spouse claiming maintenance is not capable or is unable to maintain themselves.
If a person is healthy and is capable of getting employment good enough to be self-sufficient, then they cannot claim maintenance. It is important to know that it is not just a spouse who has a right to maintenance. The following people have it too:
- Minor children
- Adult children if they are physically or mentally challenged and it makes it difficult to maintain themselves.
- Adult unmarried daughter
- Mother or father of a spouse who cannot maintain themselves or when their own children cannot maintain them.
The maintenance grant will be such that the dependents can continue to sustain their current standard of living. Maintenance will be paid at regular intervals.
Interim maintenance is the financial support provided to the wife during the pendency of the divorce (from the date of filing to the date of decree or dismissal). This is provided to ensure that the wife can sustain herself during the duration of divorce proceedings.
That said, a spouse is not entitled to maintenance in the following circumstances:
- When they get into an adulterous relationship during the time of marriage.
- Once the divorced spouse marries again.
- When they become financially self-sufficient.
- If the spouses are staying separately based on mutual consent.
- If the wife refuses to reside with the husband without proper reasons.
Right to Custody
Many assume that the mother always gets custody of her children. This is not the case. While the courts usually agree to the decision of the parents in a mutual consent divorce, the courts will look into the best interest of the child. For example, in a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child.
Who earns more is usually not taken into consideration. Usually, the court provides the custody of their children to non-working mothers, but the fathers are expected to provide financial support.
Most of the custodial questions are answered following the Guardian and Wards Act, 1890, which clearly says that the welfare of the child should be given more importance over customs or traditions.
If a child is below the age of 5 (or 7 in the case of Muslim personal law), the custody right goes to the mother as intensive care and nurturing is needed in the infant years.
Right to Property
As far as the law is concerned, a specific property belongs to the individual in whose name it has been registered. It doesn’t matter who put in cash into it, or who’s the primary contributor or anything of that sort. The sole owner gets to keep the property as long as it is not contested.
If the property has been purchased under one person’s name while the other person has made significant contributions to it, then they can claim their share by producing sufficient evidence to the court. Financial statements and records can be submitted as proof of this.
If it is a joint property, on the other hand, claims can be made on them. The court will thoroughly study the contributions made by both parties before deciding on how the property is to be divided. Typically, the property is given to one person and they are expected to pay back the contributions of the other.
A man’s ancestral property will not be up for claims.
Streedhan are the gifts a woman receives from her relatives at the time of her marriage. It is not dowry and can include both movable and immovable properties. This property is not up for question and goes to the woman in its entirety.