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Thrust law group (lawyertrust)     04 April 2011

What happens when other spouse refuses to agree to divorce ?

If the divorce is contested and not settled, the court will determine whether the divorce will be granted based on court materials, submissions and testimony.

Contested means one of the spouses has served and filed court materials to dispute the divorce. The spouses would need to provide evidence to support or contest the claims made.



 23 Replies

Jamai Of Law (propra)     04 April 2011

All such cases get dragged for years. How ? read it further................

 

Hardly 10% cases are disposed off by a full trial without other things getting cropped up.

90% are decided not by court but by parties themselves.

 

 

one party succumbs to prolonged trials and gives up and then it becomes easy for courts to pronounce the 'death' of marriage!!

 

Simple strategy! ................... wait until marriage dies!! .............

Delay contributes and favours the petitioner (Hence courts don't pay heed to requests for speedy trials) as most resondents give up!! .... and settle the matter  ........ 

Dispute gets matured and riped' like a picke.................. day by day .....

Original dispute takes the back seat and new controversies errupt. ................... and thus it becomes a 'no return' game unless one party handles it carefully. 

 

 

Finally both parties get dejected of the mess created ...................

But in the whole process ........... they both nurture the eco-system of  'Justice'  ... if there are no disputes in the world what will happen to it???  It is very similar to food chain in the nature.

 

Courts deliver judgements ( and not justice always! )   .................... So it is rather a eco-system of judgments/verdicts.

 

Its difficult to put exact thoughts what one goes through!!!

 

But Divorcing and narcissism are a difficult combination.

 

In most cases ........... people(respondents) fight their cases and defend for .....

 

1) emotional reasons (kids, parents, reputations) and don't want to be practical

2) don't want themselves to be seen as 'cowards' even though they may not be the guilty ones and also are afraid of resultant blame game, finger pointing and imputation . Why?   They do not want themselve to be seen 'as retreating/on back foot'.

So there is element of pride. So they resist not to buckle even though whole thing is painful to them.

3) they are afraid of 'aftermath' ..... divorce is a punitive remedy in personal law. and respondent carries that stigma for a long time. And even for this reason some may reluctantly oblige to mutual consent divorce after some time of fight!!

4) respondents feel helpless when they see that .............

                           a) 'Other half' has discovered a "veto power to leave and break apart" and in addition

                            b) 'Other half' also looks equipped with 'reasons for such decisions'

                            (i.e. Respondents are shocked for the reasons that ................... 'how could other-half take such decision !! ... How can other-half become so inconsiderate? ... otherwise even........... I could also have taken this decision myself ............. a long time back!!  .....................      but  I was considerate !! I thought about my family and kids !!! ............... but now ! ............... my other-half is behaving selfish !!! etc etc etc)

 

 

Even Courts get disinterested in such cases (rather help the petitioner to delay and drag the case untill the respondent gives up and buckles under continuous stress and trauma!!)

 

Thrust law group (lawyertrust)     04 April 2011

  1. Contested Divorce

    • Generally, when a spouse wants to file for a divorce, he or she consults with the other spouse in order to determine if the spouses can agree on filing for a divorce. If the couple agrees, this is known as an "uncontested" divorce. However, when a spouse cannot agree or one of the parties refuses to sign uncontested divorce papers, the divorce becomes known as a "contested" divorce. In such an instance, it is necessary for a contested divorce action to be filed in court.

    Contested Divorce Initial Procedure

    • Generally, a contested divorce action begins with the filing of a petition to the appropriate court, usually the family court. The petition only requires the signature of one spouse. The petition should contain an allegation that the marriage has dissolved. Additionally, the petition should include any basis for the divorce, if the state's applicable statute requires such information to be contained in the document. The petition should only include those items required by statute.

    Contested Divorce Action

    • Once the initial petition has been filed, the divorce action may proceed. Generally, the divorce action will include a review of the distribution of property and assets of the spouses, as well as a review of child issues if applicable, such as child support, child custody and visitation. The couple may agree about these matters, but they may be unable to reach a mutually acceptable agreement. As a result, a trial may be necessary in order to resolve these issues. At the trial, each party must present evidence and prove the basis for the divorce and any other issues requiring resolution. Once a determination on the divorce and related issues has been obtained, a judgment for divorce will be issued by the court.

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[url=https://www.azduilaw.com/]Thrust law group[/url]

Jamai Of Law (propra)     04 April 2011

The envisaged theory is quite different than ground reality.

 

manjit kalra (system eng)     04 April 2011

contested divorce : if male is daring too much aur 498a se bhi nahi darta then its contested divorce,

in case he is afraid of 498a and other fake cases

uncontested divorce.

if male is very hardened then he will not bow to criminal case charges and  contest divorce to teach her a lesson and delay and drag it well.

Thrust law group (lawyertrust)     05 April 2011

hi

Jamai Of Law

ya thats true what u hv said that the envisaged theory is quite different than ground reality.hey do u knw i hv one more interesting question for you .

   What is the difference between separation and divorce?

   Answer according to me is this and what do you think ?

 

Separation happens when one or both spouses (common law or married) have decided to live apart permanently (with the intention of not living together again). Divorce happens when a judge signs an order to legally end a marriage under the Divorce Act.

Thrust law group (lawyertrust)     05 April 2011

HI Manjit kalra ,

ya thats true if male is very hardened then he will not bow to criminal case charges and contest divorce to teach her a lesson and delay and drag it well bt its not a single sided case that i have put before you all even if a women has raisen a sound for divorce then she too will too not bow to criminal case charges and surely contest divorce to teach him a lesson and delay and drag it well too..............

galsober@yahoo.co.in (def)     05 April 2011

DELAY & DRAG THEORY: Well......................... one spouse delays & drags case to

"teach" the other a lesson

"exhaust" the other so that he/she bows

"feel" himself/herself that marriage is still alive.

But, i believe that when one of the spouse makes firm mind not to live wid the other, no body can compel him/her to do so. Marriage is practically DEAD, only the declaration (divorce decree) is due.

Ppl go 4 appeals in HC or SC, but no courts or pressures can compel 2 ppl to live togather.................

Rather than dragging case 4 acedemic interest, spouses should make amicable exit if there is point of no return.

VictimOfBiasLaw (Professional)     05 April 2011

but what is the reason to drag the case , why court doesn't approve divorce if any of the spouce don't want to live with his/her partner ?

My Q :

1. what if wife file false DV case ( not 498a ) u/s 18,19,20,22 and ask for maintenance ?
when there is no ground for DV and found that DV case to get money from husband ( as in 498a is boomrang if your case is fake ) , 
in this case what if wife can't prove DV ?

Can husband go for divorce ? is this a strong ground for divorce and court approve divorce ?

2. even if husband drag the case he has to pay maintence amount , so why wife sign on divorce she will enjoy this amount and drag the case ,

Don't Court understand this and approve divorce as husband-wife don't live together and husband is paying maintence amount ?

hema (law officer)     05 April 2011

Delay and Drag theory.

It is not exclusive prerogitive of matrimonial matters.  It is inherent quality of Indian Judicial system.  In every case, invariably one party (generally losing party) delays and drags the case, as such delay gives some benefit to that particular party.  

In landlord-tenant dispute, the tenant delays and drags the case.

In labour-employer cases, the employer delays and drags the case.

In Partition suits, some of the respondents who occupied the suit premises and do not have legal claim delay and drag the case.

In divorce matters, the respondent, either it is wife or husband drags the case. 

In child custody cases, the person, who holds the custody of child drags the case.

In criminal matters, if the accused is a real culprit drags the case for such a long period waiting for the death of material prosecution witness.  If the accused is really innocent, the prosecution drags the case.

To curb this trend, one method is that the State has to appoint a  large number of competent and honest judges and  the ratio of judges and population has to be in the same proportion that is available in developed countries and more particularly in USA.  But what our State does is just prescribe three months, six months period in the Acts to dispose off the cases, and does not appoint the sufficient judges to meet these targets.  As a result, the clients put blame on advocates, the advocates put blame on judges and the judges put blame on cumbersome civil procedure code and criminal procedure code and the number of appellate forums. 

1 Like

Arup (UNEMPLOYED)     05 April 2011

divorce broadly can be devided into two;

(1) whether both the parties willing to get divorced, applied under mutual consent divorce without alligation by  one other - it is called uncontested divorce.

(2) if one or both of the parties apply for divorce on aligating the other on one or more reasons, and the aligated party oppose it, fight against the allegation - it is contested divorce. 

Thrust law group (lawyertrust)     06 April 2011

Uncontested vs. Contested Divorces

At the heart of every divorce are four issues:

1. Division of community and/or marital property
2. Division of debt
3. Custody of any children
4. Payment of child and/or spousal support

While no divorce is truly "uncontested" in the sense there are no disagreements, these disputes do not always have to be resolved in court. That's what we mean by an uncontested divorce - one where the spouses can reach a decision as to the terms of the divorce without going to trial. Uncontested divorces move more quickly through the courts and are less expensive than contested divorces.

Every couple seeking a divorce should first attempt to work out mutual terms for the separation without going to court. If the spouses cannot resolve disputes on their own, we recommend arbitration and mediation, with or without attorney representation. This saves time and money by bypassing the lengthy litigation and trial process. An uncontested divorce typically reduces hostility, allowing both parties to resume their lives more quickly.

Complex issues, high financial stakes and technical legal procedures are the marks of contested divorces. While an uncontested divorce can often be performed without an attorney, litigation often makes experienced counsel necessary for a contested divorce. If one spouse is represented by an attorney or there are difficult financial issues, seeking an attorney may be wise.

Thrust law group (lawyertrust)     06 April 2011

In both cases either  wife or husband would be sufferer, not the Honurable Judiciary or the legislative body! Won’t the chances of any healthy relation would decrease or diminish just because of amount of tension created between us during the process, as more dates means more blames or more defense (which is also a part of attack mechanism)? Even the child would be indirectly sufferer for the bitterness between the parents as helpless witness of the whole event.  Breaking up is a hard decision for anyone, but while doing, why we (in the process itself for its duration & nature) need to be nasty instead of peaceful? If a marriage can be done in a one-month notice period, why the divorce would be delayed for YEARS?


 

Arup (UNEMPLOYED)     06 April 2011

" Won’t the chances of any healthy relation would decrease or diminish just because of amount of tension created between us during the process,"

---   for that purpose mcd available in hma. please go through the following thread

https://www.lawyersclubindia.com/blog/show_post.asp?blog_posts_id=473

" If a marriage can be done in a one-month notice period, why the divorce would be delayed for YEARS?"

---   yes, it is a million doller question, raised by you.

Thrust law group (lawyertrust)     06 April 2011

The benefits of delayed divorce

On April 1, a system that allows divorced couples to divide retirement pensions went into effect. It has been reported that many housewives had postponed divorce in order to benefit from the new system. But they should be aware that the amount they will receive will be smaller than they had probably expected and that they have to wait until they reach the eligible age to start getting the money. Their maximum share is 50 percent.

The new system has two phases. In the first phase, which took effect on April 1, either party of a divorced couple can ask for a division of pension within two years of their divorce. But the two parties must reach an agreement on the division percentage. The division does not apply to the base portion of the pension. It applies only to the kosei nenkin portion (for salaried workers) or the kyosai nenkin portion (for teachers and public servants). If the period of marriage is short, the amount the housewife will receive will decrease accordingly.

To receive a share of her former husband's pension, the housewife needs to have been regarded under the pension law as having paid into the pension scheme for at least 25 years (either by working herself or by being the wife of a salaried worker). In principle, she must also wait until she turns 65 before collecting her share of the pension.

The second phase starts April 1, 2008. A housewife will automatically receive half the kosei nenkin or kyosai nenkin portion that accumulates from that date until her divorce. However, division of either nenkin money that accumulated before April 1, 2008, must be negotiated with her ex-husband.

The number of divorces peaked at about 290,000 in 2002, and then started declining the next year. The figure was about 260,000 in 2006. It is speculated that many housewives have been awaiting the introduction of the new pension-division system. But since the system is so complicated and may contain pitfalls, those who are considering divorce would do well to first consult with social-insurance offices. Some women may find it financially advantageous to remain married.


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