How Can You File For Divorce When Your Spouse Is Living Abroad?

Getting divorced in India becomes more complicated when one spouse happens to be abroad. Working women/men leave behind overseas and continue their lives, while some have differences with their mates, making things more complicated before the court. However, filing for divorce in India while staying overseas can be done without headaches. Legal paths would permit flexibility of jurisdiction. Not always easy to understand the legal provisions involved, and it often varies according to specific cases.

Jurisdiction of Divorce with Spouse is Abroad

The first step is to understand jurisdiction, especially when your spouse is out of the country. Jurisdiction refers to the power of a court to hear an action, and by the nature of divorce cases, it becomes imperative to know which court should entertain the case. Under Indian law, the jurisdiction in matrimonial matters can depend on these few factors:

• Place of Marriage: A marriage can influence the place in which you are entitled to file a case. For instance, if you were married in India, you may file a divorce petition in any family court in India. 
• Place of Residence: The Family Courts Act, 1984, bestows jurisdiction to file for divorce at the place where either of the parties resides. Therefore, the wife can seek divorce in India if she lives there while the husband lives elsewhere. Similarly, if the husband is in India, then he can file his divorce in India too. 
• Nationality of the Parties: If both spouses are Indian citizens, Indian courts may exercise their jurisdiction again over divorce-related squabbles irrespective of where one of them is stationed worldwide. If one of the spouses is a foreign national, the legal circumstances will change and much more work will have to be done.

Filing for Divorce when Spouse is Abroad

Step 1: Determining Jurisdiction

The first step is ascertaining which court will have jurisdiction over the case. If the spouse has not been a resident of India, you can go ahead and file a divorce in the country of India under the jurisdiction of any family court in India, where a party resides. When two parties are living in India at the time of their marriage, the Family Court of their respective houses can take the matter.

Step 2: Consult a Divorce Lawyer

Divorces are among the most sensitive and legally difficult matters. It is highly advisable to consult an experienced divorce lawyer who knows Indian family laws. The lawyer will help you identify the best way concerning grounds for divorce to understand the paperwork involved and inform you how to approach issues arising from that spouse’s foreign residency.

Step 3: Filing a Divorce Petition

To start, one will have to file a divorce petition in the appropriate family court. In the case where the wife is in her home country, the petition should contain the particulars of the petitioner and the grounds for divorce in addition to any other evidentiary documents (proof of desertion or cruelty for instance). It should go with the full court fees.

Step 4: Serving Divorce Notice to Your Spouse

Although serving a divorce notice to a spouse living abroad could be complicate it has to be done. Usually, the court will issue a summons to the foreign-residing spouse with the notification about the divorce petition. This may be done through:

• International Courier or Post: The summons is forward via international courier or post to the last-known address of the spouse abroad;
• Embassy or Consular Service: Where the other spouse’s whereabouts are unknown or there are other communication problems, the Indian embassy or consulate at the foreign location could assist with notice service.
• Personal Service via Power of Attorney: Sometimes, a power of attorney may be use that allows a trusted person to represent the overseas spouse in receiving notices.

Step 5: Contesting the Divorce

If your spouse contests the divorce, the legal process will take longer. They can choose to respond through a lawyer or in person if able to attend hearings in India. In some cases, the court may continue with ex party (one-sided) hearings if the spouse residing abroad fails to turn up in court after duly being inform.

Step 6: Divorce by Mutual Consent

If both spouses wish to enter into a divorce, they can jointly file a petition under the Mutual Consent Divorce clause, which is usually faster and less contentious. Upon filing, the court will impose a six-month waiting period for both parties to rethink the issue. Another divorce is according if both parties persevere in their conclusion.

Step 7: Finalization and Decree

Once the hearing and reply from the spouse, if applicable, have taken place, further procedural moves complete the picture, and the court will pass a decree of divorce. Such proceedings will be expedite in a situation where the spouse does not contest the divorce. The marriage will be dissolve legally by this decree of divorce.

Challenges Faced When Spouse is Abroad

• Long Delays: International communication and travel restrictions may cause delays in the service of notices or in a court appearance. Such delays may enlarge the divorce proceeding time interval.
• Enforcement of Orders: Though the court grants a divorce in India, enforcement of court orders, such as alimony or custody, is not easy in another country.
• Court Appearances: It could be difficult for the overseas spouse to attend an Indian court, especially if the hearings are frequent.
• Recognition Beyond India of Divorces: Many foreign countries may not recognize Indian divorce decrees automatically. Certain additional steps, therefore, may be require for such a divorce to be recognize abroad.

One can talk to a lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtain at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.