DISSOLUTION OF MARRIAGE

Abstract

Marriage dissolution, commonly known as divorce, is a complex process influenced by legal, social, and cultural factors. This article provides insights into the legal framework surrounding divorce, including procedures, implications, and evolving trends. It explores various grounds for divorce, ranging from mutual consent to irretrievable breakdowns, within different legal jurisdictions. Additionally, it discusses the procedural aspects of obtaining a dissolution of marriage and the legal implications, particularly regarding financial matters, child custody, and property division. The article also examines the evolution of divorce laws, addressing historical perspectives and contemporary challenges. Despite advancements, issues such as high divorce rates, child custody disputes, and cultural stigmas persist, highlighting the ongoing complexities of marriage dissolution. Understanding the legal landscape of divorce is crucial for individuals navigating this challenging process and for policymakers striving to promote fairness and justice in family law.

Keywords

Divorce, Marriage, Justice, Law, Dissolution, Couple.

Introduction

Marriage, often perceived as a lifelong union between two individuals, can sometimes encounter turbulent waters leading to its dissolution. In various societies, the dissolution of marriage, commonly referred to as divorce, is a multifaceted process influenced by legal, social, and cultural factors. Understanding the intricacies of marriage dissolution is crucial for individuals navigating this challenging terrain.

Divorce, the legal termination of marriage, is a complex process influenced by various factors including legal frameworks, cultural norms, and religious principles. Understanding the landscape of divorce is crucial for individuals navigating this challenging terrain and for policymakers shaping family law. Divorce laws vary widely across jurisdictions, encompassing court proceedings and alternative dispute resolution methods like mediation.

In India, for example, divorce grounds include mutual consent, irretrievable breakdown, adultery, cruelty, desertion, and others, each with its own legal implications. Divorce carries significant legal implications, especially regarding finances, child custody, and property division. Courts intervene in contested divorces, considering factors like marriage duration and child welfare. The evolution of divorce laws reflects societal changes, aiming to address gender inequalities and promote equality.

Despite legal advancements, challenges persist, including high divorce rates, custody disputes, and emotional impacts. Cultural stigmas and religious constraints further complicate divorce proceedings. By fostering support networks and dialogue, policymakers can promote fairness and justice in divorce, facilitating smoother transitions for individuals and families.

Definition

The official, legal dissolution of a marriage by a court is known as a divorce. Your marriage and your legal status as spouses are terminated entirely by a dissolution of marriage.

A dissolution does not “undo” the marriage as if it never happened, as contrast to an annulment. Rather, it is a formal end to the union. A dissolution of marriage is required if you and your spouse want to get divorced.

A person’s cultural, social and material grounding seem to play an important role in several areas: the genesis of marital conflict (which again raises the question of the link between socio-economic status and divorce), crisis management (choice of lawyer, marital therapy seeking) or the very possibility of divorce (economic insecurity is often a barrier to separation)[1].

Legal Framework

The legal framework governing marriage dissolution varies significantly across jurisdictions, reflecting diverse cultural norms, religious principles, and legislative policies. In many jurisdictions, divorce laws encompass both judicial and extrajudicial mechanisms for terminating marital unions. Judicial divorce involves court proceedings wherein a judge adjudicates on issues such as division of assets, child custody, and alimony. On the other hand, extrajudicial divorce may entail processes such as mediation, arbitration, or mutual consent agreements, enabling couples to dissolve their marriage outside the courtroom.

Evolution of Divorce Laws

Over time, divorce laws have evolved in response to changing societal attitudes, demographic trends, and gender dynamics. Historical perspectives on divorce often reflected patriarchal norms, with women facing significant obstacles to obtaining divorces and asserting their rights. However, progressive reforms have sought to address gender inequalities in divorce laws, promoting principles of equality, autonomy, and individual freedom. Moreover, legislative reforms have expanded the grounds for divorce and introduced alternative dispute resolution mechanisms to streamline the divorce process and mitigate adversarial conflicts.

Grounds for Divorce[2]

Grounds for divorce, or the legal reasons upon which a marriage can be terminated, vary widely across jurisdictions.

Some of the grounds for divorce are given below in detail:

Dissolution of marriage by mutual consent:

Divorce by consent is the only form of no-fault divorce that Indian law expressly recognises. The petitioners in this case state that they have jointly decided to dissolve their marriage since they have not been able to live together for a year or longer and were living apart at the time the petition was presented. Spouses agree on a number of significant matters prior to filing the petition, including child custody, alimony to the wife, return of dowry items or “Streedhan,” and litigation costs. Additionally, the terms of the agreement must be included in the divorce petition by mutual consent.

Under Sections 13-B[3] of the Hindu Marriage Act of 1955, Section 28[4] of the Special Marriage Act of 1954, and Section 10-A[5] of the Indian Divorce Act of 1869, spouses may petition for a dissolution of marriage by mutual consent.

Grounds for a mutually consenting marriage dissolution:

The Supreme Court provides the following explanation of the grounds for a marriage dissolution in the case of Sureshta Devi[6]:

“Living separately” for a full year ought to come right before the petition is presented. The parties must have been living apart for the immediate period prior to the petition being presented. “Living separately” implies, in our minds, not living as husband and wife. It makes no mention of where you live. Notwithstanding the fact that they may be forced to live together, the parties may not be living as husband and wife. Despite residing in separate homes, the parties are still able to live together as husband and wife. It appears that they have no desire to fulfil their marital duties, and because of this mentality, they have been living apart for a year prior to the petition being presented.
The second prerequisite, that they “have not been able to live together,” seems to allude to a failed marriage in which they are unable to make amends.
Their shared agreement that the marriage should end is the third prerequisite.

2. Irretrievable breakdown of Marriage[7]

The idea of an irretrievable breakdown of marriage is another method of ending a marriage on “no-fault” grounds, in addition to divorce by mutual consent. The Divorce and Matrimonial Causes Amendment Act of 1920[8] established the notion of “irretrievable breakdown of marriage,” a term that was initially adopted by New Zealand. Since then, it has been recognised as a basis for divorce in a few of nations. Actually, it’s the only basis for filing for divorce in the United Kingdom.

When one or both spouses are unwilling to live together, they become unable of carrying out their spousal responsibilities and their conflicts cannot be resolved, leading to an irretrievable breakup of the marriage.

Regarding the inclusion of irretrievable breakdown of marriage as a basis for divorce, the Supreme Court has reversed its position. In the recent case of Vishnu Dutt Sharma v. Manju Sharma[9], the Supreme Court rejected this idea, stating that it would be unfair to apply such a concept in a scenario where one party files for divorce on the grounds of an irretrievable breakdown and the other party, who has suffered because of the petitioner’s faults, opposes the petition. However, the Rajya Sabha approved the Marriage Laws Amendment Bill (2013)[10], which aims to amend the Hindu Marriage Act by adding section 13C[11], which would divorce marriages on the grounds of irretrievable collapse.

It stipulates that the parties must have lived apart for a minimum of three years before the petition is submitted. Living apart from one another in this case refers to not sharing a home.

In this instance, unlike in a divorce by consent, either party may file a petition for the marriage to be dissolved, or the court may do so even in the event that the other party opposes. On the other hand, the petition may be rejected by the wife if she experiences financial difficulties.

3. Grounds for Divorce in accordance with the Hindu Marriage Act, 1955[12]:

These are the grounds listed under the Hindu Marriage Act, 1955, for divorce in India.

Adultery: Having sex with someone you are not married to be considered engaging in any form of sexual interaction. Adultery is considered a criminal offence, and it must be proven with significant evidence. A 1976 legal modification stipulates that the petitioner just needs to commit one act of adultery in order to obtain a divorce.
Cruelty: When a spouse experiences physical or emotional abuse that puts their life, limb, or health in jeopardy, they may file for divorce. A sequence of occurrences rather than a single act is used to evaluate the intangible acts of cruelty committed by mental torment. Cruelty includes things like depriving someone of food, abusing them repeatedly in order to get a dowry, engaging in bizarre sexual behaviour, etc.
Desertion: A spouse may bring a desertion claim in a divorce lawsuit if one of them wilfully leaves their other behind for a minimum of two years.
Conversion: If one of the partners chooses to become a follower of a different religion, the other partner may use this as grounds for divorce.
Mental Disorder: If one of the petitioner’s spouses has an irreversible mental illness or is insane and cannot be expected to live with the other, this may serve as grounds for divorce.
Leprosy: The other spouse may file a petition on this basis if the other spouse has a “virulent and incurable” form of leprosy.
Venereal Disease: The other spouse may apply for divorce if the other spouse has a serious illness that is easily spread. Venerable diseases include HIV/AIDS and other sexually transmitted infections.
Renunciation: If one partner joins a religious organisation and renounces all worldly affairs, the other spouse may file for divorce.
Not Heard Alive: A person is assumed to be dead if they are not seen or heard by people who should “naturally hear” from them for a continuous period of seven years. If the other spouse wants to get married again, they should have to petition for divorce.
No Resumption of Cohabitation: If a couple doesn’t start living together again after the court issues a separation decree, it becomes grounds for divorce.

4. The woman alone may file a divorce petition in India based on the following grounds.
1) If the spouse has engaged in sodomy, bestiality, or rape.

2) The first wife may file for divorce if the marriage was consummated prior to the Hindu Marriage Act and the husband remarries despite the first wife’s continued existence.

3) If a girl was married at the age of fifteen and renounces the marriage before becoming eighteen, she can seek for divorce.

4) The wife may file for divorce if there isn’t cohabitation for a year and the husband disobeys the maintenance order that the court granted her.

5. Grounds of divorce under the Dissolution of Muslim Marriage Act, 1939[13]

The following reasons for divorce are available to Muslim women in India, according the Dissolution of Muslim Marriage Act, 1939.

1) For four years, the husband’s whereabouts are unclear.

2) The wife has not received maintenance from the spouse for a minimum of two years.

3) The spouse has served at least seven years in prison.

4) The spouse can’t fulfil his responsibilities to the marriage.

5) Should the girl choose to divorce her spouse before becoming eighteen and she was married before the age of fifteen.

6) The husband engages in cruel behaviour.

6. Grounds of divorce under Indian Divorce Act, 1869[14]

The Indian Divorce Act of 1869 lists the following reasons for divorce.
1) Infidelity

2) Becoming a follower of another religion

3) Leprosy or a contagious venereal disease affected one of the couples for at least two years prior to the divorce being filed.

4) Have gone missing for a minimum of seven years, neither seen nor heard from.
5) Failing to honour the two-year minimum requirement for the restoration of marital rights.

How is a dissolution of marriage obtained?

One spouse must file a divorce petition, also known as a petition for dissolution of marriage, in order to get a dissolution or marriage divorce. You can find the state-specific dissolution of marriage form on the website of your state court.

This form typically requests basic information about you and your spouse, including names, addresses, dates of birth, and marriage, as well as details about any minor children. It also asks you to specify the grounds for your divorce (noting that all states now offer a no-fault ground).

In addition, the petitioner (the individual filing) is asked in the dissolution documents if they are seeking property distribution, spousal support, custody, or child support.

When does a marriage end?

When the court provides a final judgement and decree, the marriage is considered officially dissolved. The judge’s rulings on each of the case’s issues are contained in this document. In the event of a settlement, the conditions of the agreement are incorporated into the ruling.
The day the divorce decree is signed by the judge marks the official end of your marriage. The state will issue a certificate of dissolution, which is a legal document attesting to the end of your marriage (just like a marriage certificate proves you are married).

Legal Implications

The dissolution of marriage carries significant legal implications for both spouses, particularly concerning financial matters, child custody, and property division. In contested divorces, where disagreements arise over these issues, courts intervene to resolve disputes and ensure equitable outcomes. Factors such as the duration of the marriage, financial contributions, and the welfare of any children involved are considered in determining the terms of the divorce settlement. Additionally, prenuptial agreements, if present, may influence the division of assets and spousal support arrangements.

Contemporary Challenges[15]

Despite advancements in divorce laws and procedures, contemporary challenges persist in the realm of marriage dissolution. High rates of divorce, particularly in Western societies, raise concerns about the social and economic consequences of marital breakdowns. Moreover, issues such as child custody disputes, spousal support obligations, and the emotional toll of divorce on families underscore the complexities inherent in navigating the dissolution of marriage. Additionally, cultural stigmas, religious constraints, and societal pressures may impede individuals from seeking divorce or accessing legal remedies.

Conclusion

In conclusion, the dissolution of marriage is a multifaceted process shaped by legal, social, and cultural dynamics. Understanding the legal framework surrounding divorce is essential for individuals seeking to navigate this complex terrain effectively. By addressing issues such as grounds for divorce, legal implications, and evolving trends in divorce laws, policymakers and legal practitioners can work towards promoting fairness, equity, and justice in the realm of marriage dissolution. Moreover, fostering dialogue and support networks for individuals undergoing divorce can help mitigate the challenges and facilitate smoother transitions towards new beginnings.

References

Lambert, A., & Coleman, H. (2009). From Causes to Consequences: A Critical History of Divorce as a Study Object and the Main Orientations of French Research. http://www.jstor.org/stable/27736133.
Grounds for Divorce in India, https://timesofindia.indiatimes.com/readersblog/lawpedia/grounds-for-divorce-in-india-35652/.
Dissolution of Muslim Marriage Act, Act No. 8 of 1939, https://www.indiacode.nic.in/bitstream/123456789/2404/1/193908.pdf.
The Hindu Marriage Act, Act No. 25 of 1955.
The Special Marriage Act, Act No. 43 of 1954.
The Indian Divorce Act, Act No. 4 of 1869.
Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, https://www.scconline.com/Members/SearchResult.aspx.
Loli Shukla, Irretrievable Breakdown of Marriage as a Ground for Divorce, https://www.scconline.com/blog/post/2022/04/15/irretrievable-breakdown-of-marriage-as-a-ground-for-divorce/.
The Divorce and Matrimonial Causes Amendment Act, Act No. 70 of 1920, http://www.nzlii.org/nz/legis/hist_act/damcaa192011gv1920n70434/.
Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, https://www.scconline.com/Members/SearchResult.aspx.
Marriage Laws Amendment Bill (2013), https://prsindia.org/files/bills_acts/bills_parliament/2010/Marriage_Laws_Bill_as_passed_by_RS.pdf.
Social and Legal Aspects of Divorce in India, https://blog.ipleaders.in/social-legal-aspects-divorce-india/.

[1] Lambert, A., & Coleman, H. (2009). From Causes to Consequences: A Critical History of Divorce as a Study Object and the Main Orientations of French Research. Population (English Edition, 2002-), 64(1), 147–172. http://www.jstor.org/stable/27736133

[2] Lawpedia, Grounds for Divorce in India, JUL 25, 2021, 22:47 IST, https://timesofindia.indiatimes.com/readersblog/lawpedia/grounds-for-divorce-in-india-35652/

[3] The Hindu Marriage Act, § 13-B, Act No. 25 of 1955.

[4] The Special Marriage Act, § 28, Act No. 43 of 1954.

[5] The Indian Divorce Act, § 10-A, Act No. 4 of 1869.

[6] Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, https://www.scconline.com/Members/SearchResult.aspx.

[7] Loli Shukla, Irretrievable Breakdown of Marriage as a Ground for Divorce, April 15, 2022, https://www.scconline.com/blog/post/2022/04/15/irretrievable-breakdown-of-marriage-as-a-ground-for-divorce/

[8] The Divorce and Matrimonial Causes Amendment Act, Act No. 70 of 1920, http://www.nzlii.org/nz/legis/hist_act/damcaa192011gv1920n70434/

[9] Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, https://www.scconline.com/Members/SearchResult.aspx

[10] Marriage Laws Amendment Bill (2013), https://prsindia.org/files/bills_acts/bills_parliament/2010/Marriage_Laws_Bill_as_passed_by_RS.pdf

[11] The Hindu Marriage Act, § 13-C, Act No. 25 of 1955.

[12] The Hindu Marriage Act, Act No. 25 of 1955.

[13] Dissolution of Muslim Marriage Act, Act No. 8 of 1939, https://www.indiacode.nic.in/bitstream/123456789/2404/1/193908.pdf.

[14] Ibid.

[15] Srishti Sinha, Social and Legal Aspects of Divorce in India, August 27, 2021, https://blog.ipleaders.in/social-legal-aspects-divorce-india/

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.