Category: Family Law and Divorce

Divorce is the legal dissolution of marriage. Under Hindu law either of the aggrieved party to the marriage can file for divorce under any of the grounds mentioned in section 13 of the Hindu Marriage Act, 1955. However, if the parties are of the view that their marriage is not working and they cannot live with each other, then in that case they can file divorce by mutual consent too. The provision for divorce by mutual consent was not there when the Hindu Marriage Act was originally enacted in 1955. It was only in the year 1976 that by an amendment that a new section 13B was inserted in the Act which dealt with the provision of mutual consent. The divorce by mutual consent is different from a regular case of divorce as in the case of a divorce under section 13, the aggrieved party is the petitioner and the other party is the respondent whereas it is not so in the case of a divorce by mutual consent. In divorce by mutual consent both the husband and the wife are the petitioners and they file a joint petition seeking dissolution of their marriage. However, the consent must be free and not obtained by way of force, fraud, undue influence or any kind of threat as the whole purpose of mutual consent will be vitiated if consent is not free.

One of the important conditions for seeking divorce by mutual consent is that the husband and the wife must be living separately for one year prior to the filing of the petition. If this condition is satisfied then both the husband and the wife can file a joint petition in the District Court. The filing of the joint petition is known as first motion petition in which both the parties have to give affidavit that due to irreconcilable differences between them, they can no longer stay together as husband and wife and that divorce should be granted to them. After that a cooling period of 6 months starts. This period of 6 months is given by the Court so that both the husband and wife can think over again of their decision of divorce and to find possibility of reconciliation. However, if still there is no reconciliation then the husband and wife can file second motion petition after the expiry of 6 months and not later than 18 months.

The parties are at a liberty to withdraw his/her consent at any point of time. The Supreme Court in the case of Hitesh Bhatnagar vs. Deepa Bhatnagar (2011) held that even if husband or wife withdrew consent after 18 months but prior to passing of the decree by a competent court, the court could not grant divorce. So, either of the husband or wife can withdraw his/her consent before the passing of the decree by the court.

So, a divorce by mutual consent means a decree of divorce obtained when both husband and wife, agree for divorce in an amicable manner. It avoids the allegations made by either party against the each other and also it is the quirkiest form of divorce.

Three types of Divorce Applications in Ontario.

1. Simple Divorce (Uncontested Divorce)

2. Joint Divorce (Uncontested Divorce)

3. Divorce with other relief. (Contested Divorce)

SIMPLE DIVORCE

Simple Divorce is filed by one of the spouses who serve the Application on the other spouse. The spouse who files and serves the Application is referred to as the Applicant and the Spouse who receives the Application is referred to as the respondent to Application. The Respondent is expected to file an answer at the court within the prescribed time, if no answer is filed with the court of justice then the court will proceed with the Application and issue an order. Important to note that in a Simple Divorce, the only relief Claimed from the Court is Divorce only. You would need to file form 8A of the Family Court Ontario Court Forms which can be downloaded from the Ontario Court Forms Website.

Therefore, a simple divorce recommended where no other relief is claimed by the parties filing the Divorce in Ontario. Simple Divorce in Ontario is cost effective and expeditious. If you were to retain a Divorce Lawyer Toronto he or she will ensure that your Simple Divorce Application is filed in court within time and you do not have to make any court appearance. Your Lawyer will attend and respond to any questions the Judge may have pertaining to your Application.

JOINT DIVORCE

Joint Divorce in Ontario is filed when both spouses submit a joint divorce application in court. In a Joint Divorce in Ontario, the parties do not have to serve the documents on the other spouse since both spouses are Joint Applicants. A Joint divorce is cost-effective since both parties will be sharing court costs and it is expeditious since the step to serve the other party is skipped.

Joint divorce is suitable where are able to come to an agreement on all issues such as child custody, support, and equalization of property. It is recommended for a Joint Divorce in Ontario that parties should file a Separation Agreement along with the Joint Application. For Joint Application, the parties can use form 8A form the Ontario Court forms website.

DIVORCE WITH OTHER RELIEF

If the parties are at dispute as to other relief such as Child Custody, Support or Division of Property then it is treated as a contested Matter the Divorce application form used for this type of Divorce is Form 8 General, This form can be downloaded from Ontario Court Forms website.

A divorce with corollary relief is appropriate where the spouses are unable to agree upon any of the issues such as child support or Child Custody, Spousal Support or Division of property. The Divorce with other relief costly and time-consuming. It could cost between $5000 to $6000 for a simple matter to be resolved, whereas for more complex matters the Divorce with other relief costs could go up to $8,000 to $25,000.

Grounds for Divorce in Canada

As per the Divorce Act, there are three Grounds for Divorce

1. Separation for a minimum of one year at the time of Divorce Hearing

2. Adultery

3. Cruelty

Divorce can be rejected in any one of the Following Situations

1. Not Adequate Child Support Provisions (The Most Common reason for the Judge to Reject an Application).
2. Connivance.
3. Collusion.
4. Condonation

It is always a wise idea to retain one of the Best Divorce Lawyer Toronto to ensure that your Application is properly drafted and filed in accordance with the Family Laws. Shaikh Law Firm, Divorce Lawyer Toronto is known to be one of the leading Law Firms dealing in Family Laws.

Couples who decide to end their marriage have a few options to consider when it comes to handling the divorce process. For example, they can decide to do it themselves; hire their own attorneys, or hire a mediator who will work with both spouses together. Since litigation can be very expensive and a Do-It-Yourself divorce can lead to many headaches and mistakes, many couples are now opting for divorce mediation. However, it’s easy to wonder whose side the mediator is on.

To answer this question, it’s important to understand how divorce mediation works. When a marriage ends, many decisions have to be made regarding the distribution of the couple’s assets, debts, retirement and pension plans, child custody arrangements, child support, and spousal support (alimony). Once all of these decisions have been made, they enter in a Marital Settlement Agreement (MSA) which is then submitted court. If couples can’t agree on everything, a family court judge will decide for them. But before reaching this step, couples can hire a mediator to help them reach a compromise and a final agreement. A family law mediator’s job is to act as a neutral third party who helps spouses communicate better and find common ground. The mediation process starts out with the mediator evaluating which issues both spouses agree on, and which issues need further discussion to reach an agreement.

As a neutral participant, the mediator cannot take either side, or decide if one spouse is right or wrong, or tell either spouse what they should do. The mediator is neither an arbitrator, nor a referee, but rather a facilitator, or a negotiator who levels the playing field. He merely presents options to the parties from which they get to select the one best for them. The mediator has gone through extensive training to learn and develop techniques to peacefully guide the couple through all of the issues to be resolved, while making sure that the rights and needs of both spouses (and children if applicable) are addressed and protected. By not taking sides, the divorce mediator is able to help the couple focus on life after divorce, rather than dwell on past disagreements and resentment. He/she can also assist spouses in improving their communication style and problem-solving skills, enabling them to reduce friction and make wiser decisions in the future. Divorce mediation ends when the divorcing couple has agreed on all outstanding issues and has put the agreement in writing for submission to family court.

Divorce can be a difficult as well as psychologically tolling process on all parties involved. When it comes to divorce, there is not just one way to divorce. Parties can choose to each hire a lawyer to represent them during the divorce process, parties can choose to work together with a mediator to assist them in crafting an amicable agreement or each party can choose to hire a collaborative divorce lawyer and work with each other and the lawyers with the goal of resolving issues and avoiding court. A divorce can be uncontested, contested or granted by default. The differences are explained below:

Uncontested Divorce

It is always the least costly and best choice to try and resolve a divorce in an uncontested way. An uncontested divorce is where you and spouse work together to craft an agreement on the terms of your divorce. By working together and agreeing on the terms, you can avoid going to court.

Parties can work together with a neutral mediator to craft the terms of the divorce and then file the divorce papers themselves with the court. They can also each hire a collaborative divorce attorney who will work with them to craft an amicable divorce agreement with the goal of avoiding court. If the parties disagree and decide to go to court, the collaborative divorce attorneys will discontinue representation. Or, a party can choose to hire a divorce lawyer to file divorce papers and craft an agreement to present to the spouse for signing 90 days from service of the divorce complaint on the spouse. If the parties consent to the divorce and sign the paperwork, the divorce papers can be filed with court and the parties will receive their divorce decree thereafter.

Default Divorce

A court will grant a divorce by “default” if a party files for divorce and the spouse does not response after being properly served with the divorce complaint and paperwork. This can be used when a spouse’s whereabouts are unknown or is unwilling to participate in the divorce process.

Contested Divorce

If you and your spouse cannot come to an agreement on the terms of your divorce, you can bring your issues in front of a Master and Judge. You will go through the process of exchanging discovery such as financial documentation, settlement negotiations, hearings, and, if you cannot come to an agreement after these exchanges, you will have a trial.

Fault and No-Fault Divorce

It used be that a divorce could not be granted unless there were fault grounds. Those days have passed and we now have no-fault divorces. Parties can still choose to divorce on fault grounds for reasons of adultery, abandonment; however, it can be very expensive due to the litigious nature of the divorce.

A no-fault divorce is where instead of proving that your spouse is to blame for the divorce, you can consent to the divorce under 3301(c) in Pennsylvania or divorce by Irretrievable breakdown of the marriage under 3301(d) in Pennsylvania. Under 3301(c), the parties can consent to the divorce by filing an affidavit of consent with the court 90 days after your spouse has been served with the divorce complaint. If both parties consent to the divorce, you can craft and file an agreement with the court and request entry of your divorce.

Under 3301(d), the parties must prove a separation from their spouse for a period of time to request grounds to divorce. If the period of separation from your spouse began on or after Dec. 5, 2016 you will need to be living separate and apart from your spouse for a period of ONE YEAR. If the period of separation from your spouse began before Dec. 5, 2016, you are required to be living separate and apart from your spouse for a period of TWO YEARS.

Mediated Divorce

Mediation is an alternative method of dispute resolution, which is available to parties undergoing separation, divorce or custody issues. Mediation is different than traditional divorce or custody litigation, because the parties work together to decide between themselves what is best for them and their children. In traditional divorce litigation, the parties are adversaries and the decision is left in the hands of the Master or Judge. In Divorce or Custody Mediation, the mediator does not act as an advocate or a Judge, rather, the mediator helps the parties work together to decide on their own how to resolve their differences.

Collaborative Divorce

Collaborative Divorce and Custody Practice is a voluntary dispute resolution process which allows parties to settle without resorting to traditional divorce and custody litigation. You and your spouse will each hire lawyers and work with the lawyers and each other to collaborative resolve issues that are in the best interests of everyone. The lawyers and clients sign an Agreement, which outlines that if the parties are unable to reach a settlement, the lawyers will withdraw from the case and assist the clients in transitioning the case to trial attorneys. By working in an open, cooperative environment, parties and their counsel can work toward a settlement that benefits everyone.

In Collaborative Law Practice, the parties voluntarily disclose all information relevant and material to the issues that must be decided, the parties agree to use good faith efforts in their negotiations to reach mutually beneficial settlements, each party must be represented by an attorney, the representation of the attorney ends upon any contested court proceeding, the parties may jointly engage experts as needed whose engagement terminates upon contested court proceedings.

Philippine courts do not recognize foreign decrees, such as a divorce decree, unless the same is proven as having been validly obtained abroad. When a Filipino gets divorced, his or her marital status as indicated in the records of the NSO (now Philippine Statistics Authority) cannot be changed to “single” by merely presenting a divorce decree. The Court needs to order the NSO to change the said entry to enable the Filipino divorcee to remarry.

Where to file. This is done through a Petition for Recognition of Foreign Divorce filed at the Regional Trial Court (RTC) of the place where the petitioner is a resident thereof.

Documentary requirements. Satisfactorily completing the documentary requirements is the major roadblock in these kinds of petition. Not only is it difficult to properly accomplish, Courts also vary in their appreciation of the sufficiency of the document.

For instance, to show the existence of the divorce law, you will present a copy of relevant portions of the divorce law of Japan. As the same is in the Japanese language, you will need to find an accredited translator to have the translation certified as the true translation. You also have to find the “custodian” of the divorce law to certify the same as its true copy. Finally, you have to go to the nearest Philippine Embassy to have the documents authenticated or as they call it, “red-ribboned”.

Here is a list of the documents we have so far used in the recognition cases we have handled:

1. Marriage Certificate

2. Divorce Decree

3. Birth Certificate of the spouses and the children, if any

4. Official publication of the Divorce Law (or portions of it indicating the right to obtain to divorce and the right to remarry after the divorce is granted)

5. Special Power of Attorney (if case is filed in your behalf by a representative)

6. Copy of Valid Philippine passport

All documents obtained abroad which are not in the English language have to be translated, certified and authenticated. If the documents are in English, then it only needs to be certified and authenticated.

Formal requirements. Not all Filipinos who has obtained a divorce can file for recognition. In the case of Republic vs. Obrecido, the Supreme Court had the occasion to state the twin elements that should be present before a Filipino can file for recognition:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

If the divorce was obtained by two Filipinos abroad, the same cannot be recognized here as it was not a marriage between a Filipino citizen and a foreigner. If, on the other hand, the divorce was obtained by a former Filipino who obtained a citizenship abroad and then filed for divorce, then he or she is effectively a foreigner and may thus have the divorce recognized here. Note that what matters is the citizenship of the parties at the time of divorce, not at the time of marriage.

The divorce law must also allow the Filipino divorcee to remarry. Although I have not heard of a divorce law that prevents the divorcing spouses to remarry, this portion of the law must still be specifically pointed out in Court.

Timeline and procedure. The entire proceeding should take about six months to a year, depending on how quickly the Court will act on the petition by scheduling the hearings and drafting the decision. There will be at least two hearings- the jurisdictional hearing and the presentation of the petitioner as a witness.

A judicial affidavit is required to be submitted to take the place of the direct testimony of the petitioner but the petitioner still has to attend in Court to confirm that he or she in fact executed the judicial affidavit and that all the statements there are correct.

After the hearings are concluded, the Court, assuming the petitioner satisfied all requirements, will grant the petition and will order the NSO to indicate in their records that the status of the petitioner is “single” and that as such, he or she is free to remarry.

Costs. Costs differ from one lawyer to another. Our personal research revealed that lawyers charge about 80,000 Pesos to 150,000 Pesos, depending on the logistics involved and other circumstances of the client.

It may be wise to choose a lawyer who has successfully handled recognition cases before to ensure proper appreciation of documents and proven knowledge of the procedure.

Other remedies. If after having read the above article, you discovered that you are not eligible to file a recognition case, you may also opt for the declaration of nullity of your marriage, assuming you have a good ground for it.

It’s never an enviable position to be in when you’re facing the prospects of separation and divorce. For many couples this of course also means child custody and child support, along with division of property, alimony, and all the other logistic and legal steps along the way. However, every case does not need to be a dug in, drawn out, ugly courtroom battle.

In fact, many couples are able to find out of courtroom solutions that offer what is ultimately an easier and simpler process, with less emotional strain and financial burden. This is where divorce mediation comes into play. Learn more about why this is a viable alternative and to see whether or not it may be the right way for you to go.

During divorce mediation, an experienced mediator serves as a third party between the couples. This entails negotiating and compromising on some of the important points and issues in play. While one on one, these would never be amicably or easily solved, with the insight of a calm, experienced outside party, solutions often develop without excessive stress or hassle.

Both sides are given equal time and weight, and it’s amazing to see the power that a neutral 3rd party can have towards producing a settlement. When both sides are heard and respected, results can be achieved.

The mediation process puts the couple in the position of power in terms of compromising for what they each feel they want or deserve, as opposed to leaving that in the hands of a judge alone.

Every case is different, and in some matters, there’s not going to be an easy out of courtroom settlement. Other individuals may simply not want to go in that direction due to what’s at stake, or how they feel about the other party. That’s why there’s never a right or a wrong, or one single approach to any case or circumstance.

However, what many individuals are finding is that divorce mediation offers the path of least resistance. That means you can move on with your life in less time, while going through a process which is easier on you emotionally and mentally, and saves you time, effort and money as opposed to lengthy, intensive courtroom fights.

Be sure to speak with an experienced divorce mediation attorney in your local area who can help guide you through the process, and determine whether or not that’s the right course of action for you.

What’s the difference between Arbitration and Mediation? There’s often confusion about which one of these two legal methods works best for divorce. Here’s some information to help you make the best decision for your divorce.

In both arbitration and mediation, a neutral third party is used with the goal to negotiate a settlement without a lengthy court proceeding. Simply put, in arbitration the arbitrator (or arbitrators) hears your evidence and makes a decision for you. In mediation, the parties in the divorce first meet together informally with a mediator to share their reasons for divorce. The mediator does not make a decision for you, but helps to facilitate a peaceful and fair discussion to lead to a resolution acceptable to both parties.

Three Top Reasons to Choose Mediation Over Arbitration

1. Save Money and Time – Though arbitration can save time because it helps to avoid the wait for a trial date, it can take much longer than mediation because it is much like a mini-trial. Both parties still have to convince the arbitrator, or sometimes arbitrators, to rule in their favor. Consideration of evidence and legal arguments often takes place with attorneys and adds even more time. Mediation takes much less time because the focus is on resolving the conflict peacefully to result in a win-win for both parties. Meetings with a mediator are scheduled at convenient times for everyone with little to no wait time. Resolution progresses at a quick pace because everyone has the same goal, a fair decision and a good outcome for everyone.

Arbitration saves money because there is no going to court, but it requires hiring attorneys who bill by the hour in addition to arbitrators who are also paid. This can greatly increase the cost. Mediation saves money because it involves only the mediator and the couple, proceeds much faster, and the mediator’s fee is a fraction of the cost of an arbitration proceeding.

2. Focus on the Future – In mediation the focus is on the future. Both parties are encouraged to get beyond their differences and settle their divorce peacefully and quickly. There is no right or wrong side and the divorcees have more control over their future. Arbitration is left up to a third party to make the decision. Rights and obligations are determined by existing law which the arbitrator is forced to follow. The outcome may not be what both parties expect and it can be a contentious and lengthy procedure.

3. Ease of Decision – Mediation avoids lengthy court battles and focuses on a positive outcome with agreement by both parties. The goal is a positive post-divorce decision that benefits the whole family and leaves an intact relationship. Though arbitration may cut court time, it is still a proceeding much like a trial. It can result in attacks upon one another to just to prove a side. Results may cause lasting animosity between the couple.

Mediation – the Popular Choice

Currently, mediation is more often the choice for divorce litigation and other lawsuits because of its high success rate. Like yourself, most people want to avoid a costly court trial and to keep a positive relationship with their ex. Mediation offers a safe, confidential environment with a caring mediator to lead the way to a positive end. The state of Florida has gone so far as to require all lawsuits to be mediated before going to court. The state has determined that mediation saves time and effort, reduces court dockets and trials, and is much more cost-effect than litigation.