Finding a good lawyer, understanding the basic laws, planning finances and getting emotional support also constitute a crucial part of a divorce.

In this silhouette a woman is seen sitting on the bed A backpack is kept on the bed Representative image from Picxy by Dreamworks
news Women's Rights Thursday, November 19, 2020 - 19:34

Thirty-something Sheetal (name changed), a native of Tamil Nadu, was in an abusive marriage. She was initially apprehensive of the idea of divorce, fearing her parents and society’s attitude towards ending a marriage. When she finally decided to go ahead, she was faced with a massive checklist of things she needed to ensure. She hired a financial consultant, sold her vehicle — part of the amount went in her bank loan and the rest of it she kept aside for her child’s school fee. Sheetal, fortunately, had a steady income and her employers, as well as her family, stood by her. After a difficult trial where her husband even tried to fabricate evidence against her, she managed to secure a divorce and the custody of her children in less than a year.

This process, in itself, is excruciating to many, even as divorce in India still remains taboo. Though laws have armed women with the right to lead a happy life independent of abusive marriages, several women hesitate to divorce their partners, even though they are unhappy. Because what is most daunting for many women is — what next?

TNM spoke to five experts to put together a checklist of critical steps for women who are preparing for a divorce. Why? Because it is a long-drawn process that goes beyond visiting courts and signing on the dotted lines. This is a small effort to help such women.

Before taking that decision

Gauge the health of the marriage. If the argument with the husband spans across 10 days, but you feel things are not bad on the eleventh day, that is a normal 'wear and tear of marriage', which does not merit a divorce in the court, says Vandana Shah, a practising lawyer at a family court in Mumbai and founder of 360 Degrees Back to Life, a support group for women undergoing a divorce. Divorce should be a choice that you should make for yourself. You need to ascertain the health of the marriage on your own,  as you are living in that marriage. You can seek advice from a marriage counsellor or other professionals, but steer away from knee-jerk advice of friends and family who insist on 'compromise'.

THE BASICS

Laws governing divorce: There are personal laws (example: The Hindu Marriage Act, 1955 or the Indian Christian Marriage Act, 1872), which depend on the religions or customs followed to solemnise the marriage. Procedural laws, that is, the Code of Civil Procedure, significantly govern the procedure of divorce and is common to all types of divorces.

Types of divorces: In a ‘contested divorce’, both the husband and wife are not in mutual agreement to get divorced. While one party files the petition seeking a divorce, the other party files a counter, opposing the allegations on the grounds of which the divorce was filed. This is common in marriages with domestic abuse and sexual assaults. In a ‘mutual divorce’, the husband and wife file a divorce petition together after mutually agreeing that they cannot live together.

Documents needed: Carry your marriage certificates, wedding invites and wedding photographs when meeting the lawyer. When filing a contested divorce, WhatsApp conversations, email correspondences and child’s birth certificates, among others, will make for a stronger case.

How long does it take: In a mutual divorce, the court generally directs a counselling session and gives a six-month ‘cooling-off’ period to allow reconciliation. After the six months, if the couple confirms their decision to part ways, the court will grant the divorce. In a contested divorce, the court proceedings could generally go beyond six months and it could be two years by the time you get the first relief from the court. It also involves multiple visits to the family court for the hearing.

THE LEGAL ASPECTS

Get a good lawyer: Do not take up your own case, although the pro se (for oneself) representation is legally allowed. Go to court and ask around for a good lawyer rather than just asking a friend. The court clerks, too, can help identify the right lawyer. Read up about the lawyers who have been widely written about in the media; they will perform the best, says advocate Vandana. After finding the lawyer, discuss the fee and put the finalised amount on paper. If the lawyer is hesitant to do that, that is not the right lawyer. Most lawyers ask the clients to consult them first, assess the situation of the marriage and then finalise the fee.     

Know the laws: You may have the best lawyer, but you need to read up the basic laws on marriage to know your basic rights, understand the various stages of divorce and how courts function. Vandana recounts a case where a woman approached her five years into her divorce case. She was not aware of the interim maintenance she was entitled to from her husband; her lawyer had not applied for it either.

Awareness of the basic law will also help you assess if certain information should be disclosed to the lawyer. For example, your husband may have opened an account in Mauritius 10 years ago, which means he is moving his money off-shore and that will impact your final settlement. Books like ‘Intimacy Undone: Marriage, Divorce and Family Law in India’ by Malavika Rajkotia and ‘Ex-Files’ by Vandana Shah, and podcasts like Let’s Talk Divorce, too, detail the multiple steps involved.

Once in court, get out fast: A 33-year-old woman, who had approached Vandana, said she wanted out of the marriage in nine months. The case was settled in nine months and the woman walked out the marriage with Rs 20 crore. A court is for justice and not to teach your husband a lesson. Aim for a short-term settlement. The longer you are in court fighting the case, the chances of settlement are lesser. The settlement in the first year is higher than the third year.

Free legal aid: For women who cannot afford a private lawyer, free legal aid is available in every courtroom; the service depends on the lawyer. The judge also can recommend a lawyer to help guide you. Women can also approach the state commission for women to help settle matters.     

Alimony and maintenance: As per the law, every married woman is eligible to get maintenance from the husband after divorce. It depends on the husband's salary. In general, the wife gets one-third of his salary; but it can change. The alimony is the full and final settlement; it is a lump sum amount. Maintenance can be interim maintenance, which is the amount given to the wife during the course of the case.

Be prepared to face obstacles: If the case goes to trial, the other side may try and show that you don’t need maintenance. Vandana shares an example — in a recent case, a man submitted a picture of his wife holding a cigarette and hugging a man, in the court, to argue that she did not need alimony from him. However, a way out is to ensure you and your lawyer are in the loop constantly and are prepared to defend such arguments.

THE FINANCE

Hire a financial planner: It is vital to engage a finance professional for this process because there are nuances that many of us can miss — irrespective of gender — when it comes to planning for a temporarily uncertain future. Please do not try to do this on your own, advises Lavanya Mohan, a Chartered Accountant and author of the PennMoney blog, a personal finance blog for women.

Read: Why working women must hire financial planners, and what they need to look for

Keep a part of finances under your control: Sometimes, in joint family setups, there is a tendency to put all gold and assets in the joint family locker or account, which can be difficult to retrieve in case the divorce is not mutual. Funds in joint accounts can also be at risk, as are joint investments. It is important for all women to maintain some level of hygiene in their finances, irrespective of whether their marriage is in a bad place. While a joint account for joint expenses is acceptable, women must keep a portion of their finances under their control.

Ideal financial contingency plan: It's hard to define one plan for everyone, but at a basic level, make sure you have at least six months worth of salary/living expenses in your bank account, term and health insurance policies in your name and your child's name and all your assets/gold in your own locker. This is the bare minimum, but the more you can accumulate, the better.

Dividing assets, loans, debts: This varies on a case-to-case basis, but ideally should be done with the help of a legal professional who is on your side and knows how to get the best for you.

Reallocating finances discreetly: In most abusive marriages, the abuse extends to finances and there is a pattern where the partner can control all matters related to finance to the point where the woman cannot transact independently. So, discreet reallocation of finances is incredibly hard if women are not independent from day one. One way to do this is to open a bank account separately and deposit cash withdrawn from joint accounts over the course of time. However, this is even more challenging now because cash deposits in excess of Rs 50,000 will require the PAN and Aadhaar card as proof. Hence, it is vital to have these IDs.

Save religiously: Since this is an emotionally turbulent time, there will be times where you might feel like spending on expensive things — don't! Start saving religiously. Take the time to plan out the next five years of your life, career-wise and family-wise. Consult a financial planner or professional who can put together a savings and investment plan that is customised to your needs.

Investing the alimony: This varies on a case-to-case basis depending on the person's situation. Ideally, you should invest the alimony in an asset that can provide a regular stream of income. Consult a professional who can divvy it up based on your needs, but definitely don't keep it idle. Maintenance is also determined by courts. However, do not fully depend on your former husband to take care of the child's maintenance; invest in child plans and plan ahead to save for your child's fees and needs.

THE JOB FRONT

Inform HR: Divorce is a personal matter, and is completely in the purview of the woman on how comfortable she is sharing the information with the organisation, notes Sonica Aron, managing partner of Marching Sheep HR Consultancy firm. However, it is also important to inform the Human Resource department about your divorce, state the reasons and take him/her into confidence. The estranged husband could send the legal notice to the office address, or try to jeopardise your credibility if both are working in the same organisation. Besides, the firm can take a humanitarian view and allow you to work from home or grant leave with pay. Most importantly, the court takes about half a day, so take a half-day or full-day off, factoring in any delays. [Tip: Get to know the court clerk so that he can intimate you when your case or token is up for hearing rather than waiting at the court the whole day]. So, discuss your leave or holiday with your boss. A lot of progressive organisations are providing women support through legal counsel or employee assist programmes (EAPs).

Do not switch jobs: Your boss and colleagues know you, and you have established your credibility in that organisation. There are better chances of getting a holiday or leave, and the pressure will be lessened. Finding a new job will only add to the existing strain of the divorce.

THE SUPPORT SYSTEM

Find your tribe: Amidst the run between courts and office, do a friends-and-family check for some emotional support. Since women move to a new city after the wedding and make connections based on their husband's friend’s circle, friendships become fraught with uncertainty as they may be forced to take sides. So, create a new network of people whom you can share your feelings and who will listen to you. Go online and find people who are in the same position as you. Many support groups (like 360 Degrees Back to Life) do not judge women for their choices and decisions, and some even have a counsellor on board.

Seek help: Most of the aspects of divorce are things that can be worked out with a lawyer, but also worked out in counselling sessions, says Swetha Shankar, Director, Client Services at PCVC (International Foundation for Crime Prevention and Victim Care). Rope in families for counselling from the beginning. Organisations like PCVC have counselling sessions to make the family understand why the woman needs to separate and why they need to be on her side.

In many cases, a contested divorce can turn spiteful, especially when the partner contrives evidence and casts aspersions on the woman. Some women are not ready for a divorce or to face society and are worried if their relationship with the child will be affected after the divorce, pointed out Grace, a psychologist at The Mind Research Foundation. Such anxieties, sometimes, may get to the woman and engender suicidal thoughts. There are numerous helplines that provide help to anyone facing mental health issues or feeling suicidal.

HOMEMAKERS: USE SAVINGS, TAKE COURSES

Homemakers should take the time to upskill and re-enter the job market or start from square one. Some institutes offer a waiver in the course fee through various organisations. It is important to get on your own feet soon because true freedom comes with financial independence. An active line of income can allow you (and perhaps your children) the freedom to live on your own terms. Besides, homemakers keep aside some money from what they get from their husbands, as savings. They need to utilise the savings.

It is also important to seek the help of your family, friends or trusted close circle. There is a great deal of uncertainty that comes with divorce, so it's fine to seek temporary refuge until you can get back up, as soon as you can. 

Become a TNM Member for just Rs 999!
You can also support us with a one-time payment.