Introduction
This article focuses on an overview of the marriage and divorce laws in the United States and India. Marriage and divorce laws are important because they implicate strongly-held values regarding familial relationships, impact children and custody, and affect property distribution. It is also important to know how these laws have developed over time. For example, in India, the Family Court Act of 1984, established Family Courts. The Family Courts in India hear matters related to marriages, welfare of children, and marital breakdowns. In the United States, Family Courts may hear matters involving divorce, legal separations, child support or child custody. Interestingly, in the United States, sometimes the requirements of divorce or a legal separation may vary by state. However, there are some differences in the laws of marriages and divorces.
Marriages
Both India and the United States recognize various types of marriages which are regulated by different legal regimes. For instance, India is a secular country, and the following religions are practiced: Hinduism, Islam, and Christianity. Individuals in India usually solemnize their marriages in accordance with religious rituals and ceremonies, which are codified by statutory personal laws, including the following: Hindu Marriage Act of 1995; Muslim Marriages; Indian Christian Marriage Act of 1872 and Parsi Marriage. Further the Special Marriage Act of 1954 applies to persons of all religions.
In the United States, there may be options aside from marriage, like civil unions and domestic partnerships. A civil union or domestic partnership is a separate legal status that may be available in some states. However, civil unions do not provide most of the federal benefits of marriages. This may become important when someone has a loved one sick in the hospital and needs the legal right to make decisions on behalf of their loved ones. States usually regulate the institution of marriage and determine who may marry and how they may marry. There are formalities to enter into a marriage.. For instance, there are two formal requirements to establish a valid ceremonial marriage: obtaining a marriage license and solemnizing the ceremony by a qualified officiant. Further, there are forms of marriages that are no longer recognized by many states. For instance, common law marriages. Similarly in India, civil partnerships are generally not legally recognized.
Both India and the United States recognize prenuptial and postnuptial agreements. In India, prenuptial and postnuptial agreements fall into contracts and must satisfy conditions of a valid contract under Indian Contract Act of 1872. In India, a prenuptial agreement may cover an agreement regarding distribution of assets, liabilities, and issues relating to child custody. However, in India, prenuptial agreements are not binding or executable in a court of law. In the United States, there is the Uniform Premarital Agreement Act (UPAA) which is largely based on contract law. The UPAA provides the rights and obligations of each party which may include agreements on property and modifications. Generally, a prenuptial agreement will be enforceable unless the courts find that it was not voluntary or in some jurisdictions it may be invalid if there is not sufficient disclosure of financial matters between the parties.
Divorces
In order to begin the divorce process for both the United States and India, there are procedural requirements that have to be met. For example, India and the United States have jurisdictional rules that need to be met in order for the court to hear a case. When a court has jurisdiction, it gives it the power and authority to make legally binding orders in a case.
Divorces in India are governed by the Special Marriage Act of 1954. Further, under the Indian Divorce Act of 1869, a petition in a matrimonial case can be presented in the court of the district judge. Moreover, when marriages take place in India, they can be dissolved under either the customary or statutory law in India. This means that the only laws that can apply to matrimonial disputes is the one under which parties are married. Divorces may be obtained by alleging fault of the other party or by mutual consent. Some examples include, Section 13 of the Hindu Marriage Act of 1955 that provides nine fault grounds of divorce with additional four grounds available to the wife. Moreover, Section 2 of the Dissolution of Muslim Marriages Act of 1939 contains nine fault grounds on which the wife can sue alone. For mutual consent grounds, parties must have lived separately for at least a year. This separation requirement is quite similar to requirements in the United States.
In the United States, there are two main types of divorces recognized: fault and no fault divorces. Further, some jurisdictions have mixed regimes which have some similar requirements to the laws found in India. In the United States, the Uniform and Marriage Divorce Act (UMDA) requires a judicial finding that the marriage is “irretrievably broken” and there must be a satisfaction of a waiting period while living separate and apart. Specifically, in the United States those grounds include: physical cruelty, mental cruelty, spousal domestic abuse, adultery, and desertion. Additionally, there may be other remedies that do not involve divorce.
Mediations have become common in the United States and India. In India, mediations are recognized and encouraged. Moreover, an attempt at reconciliation is required under the Hindu Marriage Act and Special Marriage Act. This is very similar to some of the practices in the United States. For instance, in the United States and more specifically in Washington, D.C., courts may require parties to go through mediation before a court gets involved in deciding matters in divorce proceedings. Further, parties in the United States may be required to attempt mediation more than once. These alternative forms of remedies matter because of the sensitive nature of familial relationships. For instance, in India, the child’s interests and welfare is of primary importance. Similarly, in the United States, many states apply the best interest of the child factors. One of these factors include the capacity of the parent to provide for the child. Thus, both courts in India and the United States consider various factors.
Conclusion
In both the United States and India, there is great significance and value placed on marriages and the idea of preserving these marriages. While a family may not start with children or property, things may change during the course of a marriage. Therefore, understanding marriage and divorce law is vital because of how much is at stake when an individual enters into a marriage. It is also important to bear in mind that some individuals are pro se litigants and may need help navigating these different legal regimes. Thus, it may be helpful to both communities to continuously have resources available. For instance, having more resources providing information about informed consent on prenuptial agreements, the possible impacts of getting a divorce and having property divided between parties, and how child custody may be affected by marriage and divorce.
Disclosure: While this article covers various types of marriages that may exist and the different divorce proceedings in both India and the United States, it does not encompass all laws that exist.
Author Biography: Jocelyn Martinez is a Senior Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a JD Candidate at The George Washington University Law School. She has a Bachelor of Science degree in Criminology, Law and Society from George Mason University.
Editor: Elizabeth Duncan