Family Law like the name suggests, is a set of laws encompassing governance of family issues like divorce, marriage, maintenance etc. Family Law has specialisations like – Marriage, Divorce, Adoption, Succession etc. Lawyers who practise family law can represent their clients in court proceedings related to negotiations. Family lawyers are involved in drafting legal documents like property agreements. Family Laws are defined in the constitution but states have the right to redefine laws to some extent. In this blog, we shall discuss family law in brief. We hope you find it helpful. Read on to know more.
Table of Contents
Before we move on to discuss family law in detail, you must know about certain terms used in Family Law.
- Alimony: an allowance provided by spouse to another for maintenance after divorce
- Annulment: a marriage that is considered void in the eyes of law, can be annulled by the court at any point.
- Dissolution: Legal end of a marriage
- Emancipation: A court proceeding wherein a minor becomes responsible for his own conduct and is not under the care of his parents
- Marital Property: Property acquired at the time of marriage by either of the spouse
- Prenuptial Agreement: An agreement signed by parties before marriage that states they cannot claim on each other’s property post divorce/death
Reasons to Hire a Family Law Attorney
While one may consider family to be the simplest institution, it cannot be neglected that it has its own complication. From property disputes to divorce, a family might go through a lot of such situations. It is best to hire a family law attorney in such cases. We have pointed out four good reasons of why you must hire a family law attorney :
- Handling Paperwork – The number of documents that need to be signed during any family dispute are plenty and when an individual has no experience, he/she might become overwhelmed with all of the work. Hence, having a family lawyer makes it easy to ensure that all the paperwork is done smoothly without any haste.
- Legal Advocacy – Having a family lawyer is considered very beneficial in times when there is any dispute that needs a court proceeding. This is because they have prior experience and inform the members about their rights and guide them through.
- Divorce – Each partner hires their own attorney. The purpose of hiring an attorney is to devise a settlement plan that could avoid a trial. Divorce attorneys specialise in dividing marital property, figuring out spousal support, and devising a plan for child custody, and support.
- Child Custody/ Support – Child support is the maintenance allowance a parent has to pay to his spouse to support the child financially as per instructions laid out by the court.
If the obliged person is unable to pay due to a financial loss, a family lawyer helps in applying for lessening the support money
Top Universities for Family Law – India
We have made a list of top colleges offering a specialisation in Family Law at the postgraduate level in India. It must be noted that family law can be pursued at the post grad level.
- NLU, Delhi
- NALSAR, Hyderabad
- ILS, Pune
- IIT Kharagpur
- Delhi University
- Banaras Hindu University
- Jindal Global Law School Sonepat
Family Law in India
The purpose of having a defined set of family law is to ensure that individual rights are protected at all costs. Family Law in India is of 5 types –
- Hindu Law that governs Hindu, Buddhists, Sikhs and Jains.
- Muslim Law that governs Muslims
- Parsi Law that governs Parsis
- Secular Law
- Christian Law that governs Christians
We shall discuss each of these briefly now:
Hindu Marriage Act, 1955
It extends to India, except the State of Jammu and Kashmir, applies also to Hindus domiciled in territories to which the Act extends and those outside the said territories.
Provisions of this act are :
- It applies to Hindus,Buddhists, Sikhs, Jains and also those who are not Muslims, Christians, Parsis or Jews by religion.
- It does not apply to members of any scheduled tribes unless the Central Government directs.
- Provisions in regard to divorce are contained in section 13 of the Hindu Marriage Act and section 27 of the Special Marriage Act.
- Common ground on which divorce can be sought by a husband or a wife – Adultery, desertion, cruelty, unsoundness of mind, venereal disease, leprosy, mutual consent and being not heard of as alive for seven years.
Muslim Personal Laws
Muslim marriages in our country are governed by the Mohammedan Law. With regards to i.e., Talaq, a Muslim doesn’t enjoy equal rights as her husband to dissolve her marriage.
Dissolution of Marriage is carried out in –
- Talaq-I-Tafwid: This is a form of delegated divorce. According to this, the husband delegates his right to divorce in a marriage contract which may stipulate, inter alia, on his taking another wife, the first wife has a right to divorce him
- Khula: this is a dissolution of agreement between the parties to marriage on the wife’s giving some consideration to the husband for her release from marriage ties. Terms are a matter of bargain and usually take the form of the wife giving up her mehr or a portion of it, and
- Mubarat: this is divorce by mutual consent.
The practise of triple talaq or teen talaq was nullified by the Supreme Court of India through its August 2017 judgement.
Christian Marriage Act 1872
Provisions relating to marriage and divorce among Christians are contained in the Indian Christian Marriage Act, 1872.
Key provisions of this Act are :
“The husband can seek divorce on grounds of adultery on the part of his wife and the wife can seek divorce on the ground that the husband has converted to another religion and has gone through marriage with another woman or has been guilty of Incestuous adultery, Bigamy with adultery, Marriage with another woman with adultery, rape, sodomy or bestiality, Adultery coupled with such cruelty as without adultery would have entitled her to a divorce, a mensa etoro (a system of divorce created by the Roman Catholic Church equivalent to judicial separation on grounds of adultery, perverse practices, cruelty, heresy and apostasy) and Adultery coupled with desertion without reasonable excuse for two years or more.”
The Parsi Marriage and Divorce Act, 1936
It is responsible for governing the matrimonial relations of Parsis.
Key provision of this Act are:
- Every marriage as well as divorce under this Act is required to be registered in accordance with the procedure prescribed in the Act.
- Failure to fulfil requirements on that behalf does not make marriage invalid.
- The Act provides only for monogamy.
- By the Parsi Marriage and Divorce (Amendment) Act, 1988, scope of certain provisions of the Parsi Marriage and Divorce Act, 1936 have been enlarged so as to bring them in line with the Hindu Marriage Act, 1955.
Special Marriage Act, 1954
It extends to the whole of India except the State of Jammu and Kashmir, but also applies to the citizens of India domiciled in Jammu and Kashmir.
Key provisions of this act are:
- Persons governed by this Act can specifically register marriage under the said Act even though they are of different religious faiths.
- Marriage celebrated under any other form can also be registered under the Special Marriage Act, if it satisfies the requirements of the Act.
- The section 4(b) (iii) of the Act was amended to omit the words “or epilepsy.” Sections 36 and 38 have been amended to provide that an application for alimony pendente lite (a court ordered temporary alimony, while an action for separation or divorce is pending).
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