Family law, also known as matrimonial law or the law of domestic relations, governs family matters and domestic relations. This section of law deals with divorce and loss of parental rights. It also covers issues such as adoption of children and custodial battles. Family law has been broadly categorised into five major sets: Hindu law for Hindus, Buddhists, Jains, and Sikhs; Muslim law; Christian law; Parsi law; and secular law, represented by the Special Marriage Act,1954.  

This blog provides a general overview of family law, defining it and categorising the types in which legal representation should be sought when certain complex issues such as divorce and child custody are involved. It covers the most common issues associated with the family court such as property division, adoption, and domestic violence.

Importance of Legal Representation in Family Law

Having legal representation will protect your rights, money, and reputation. A family law attorney may represent and assist you in various matters such as:

• Guidance: Offers you proper education on your rights and the process of law 
• Court Representation: Advocates for your rights by presenting all evidence and questioning witnesses 
• Negotiation: Negotiates an out-of-court agreement or a lot of persuasive arguments in the courtroom 
• Drafting Agreements: Providing assistance in creating agreements and parenting plans that clearly outline duties and timetables 
• Objective-Based Counselling: Giving you rational advice founded upon fact, not feelings 
• Navigating the Court Process: Supporting you all along the way from paperwork to courtroom appearances.

Some of the matters family law deals with include marriage, divorce, child custody, and adoption. Given the fact that the laws surrounding these particular matters vary significantly from one jurisdiction to another, you may need to see a family lawyer specialising in the intricacies of family law and subspecialties associated with the rights of young people, adjudication, child neglect, civil unions, and visitation.

Types of Family Law

The five most significant types of family law applicable in India are discussed below. These address specific legal issues related to the different kinds of familial relationships.

Hindu Law

Hindu Law is very crucial to those practising Hinduism in India. It defines laws governing the marriage, divorce, inheritance, and even maintenance that Hindu people enjoy. It defines all marriages as institutions for the Hindu people marked by many rituals and ceremonies that have been part of their culture.

Muslim Law

Muslim Law pertains to the family issues of Indian Muslims. These norms are based on the Quran and Hadith, and the Muslim Personal Law (Shariat) Application Act of 1937 enumerates laws and regulations for marriage and divorce forms like talaq and khula. Also under consideration is the safeguarding of rights for child custody and adoption.

Christian Law

Most Christians in India follow Christian Law, which deals with the law relating to issues of marriage, divorce, and succession. Divorce is dealt with under the Indian Divorce Act 1869. This law provides for the dissolution of marriage on certain grounds such as adultery, cruelty, and desertion. Unlike Hindu law, there are grounds to dissolve a marriage.

Parsi Law

In India, there is a special Parsi Law for the Parsi community, which comes within the Parsi Marriage and Divorce Act, 1936. The said Act considers issues that may arise during inheritance and family matters in the light of maintenance due to a marriage. It provides rights related to law issues of a Parsi marriage.

Special Marriage Act of 1954

Special Marriage Act 1954 allows people to enter into civil marriages no matter their background or background in faith. That sort of law makes people from different religions and castes marry, states regulations regarding registration and termination besides discussing spousal support, child support and parental rights in the framework of neutrality.

Common Issues Faced in Family Law

Family law deals with a range of complex issues that often arise in personal relationships, significantly impacting individuals and families. Common challenges include divorce, child custody, adoption, and spousal support, each requiring careful legal consideration and resolution. Here are 11 common issues for the same: 

Divorce

Divorce, as simply known as dissolution of marriage, is that legal procedure by which a marital union is terminated. It normally terminates or readjusts the legal rights and obligations of marriage so as to dissolve the bonds of matrimony between a husband and wife under the law of the respective country or state. This legal dissolution can be through a family court and other competent authority.

Types of Divorce

• Uncontested: The spouses agree on their rights on custody, spousal support, and division of property 
• Contested: Where the couple cannot agree on others such as spousal support, and custody among others hence dragging the process further 
• Mutual: Both parties retain separate attorneys who agree to follow a low-conflict resolution 
• Default: It is awarded if one spouse fails to respond after being served with divorce papers 
• Fault Divorce: A spouse files on grounds of fault by the other, and proves it 
• Mediated Divorce: An attorney acts as a mediator for both parties in order to finalise an amicable settlement between them 
• Streamlined Divorce: The quickest and lowest cost divorce available but only in circumstances where both spouses are separated for over a year, have no children under 16 years, and both spouses agreed 
• Legal Separation: Different from divorce but, though the couple is not divorced, yet they remain legally married, raising many of the same issues of family law.

Old vs New Divorce Rules

•  Reduced Separation Period: The mandatory separation period has been cut from two years to one year.
• Mandatory Counselling: Couples must attend counselling sessions before filing for divorce.
• Filing Location for Women: Women can file for divorce in their current place of residence, not just where they were married.
• No-Fault Divorce: No specific reason is required for the divorce.
• Supreme Court Authority: The Supreme Court can grant divorce based on ‘irretrievable breakdown of marriage’
• 20-Week Timeframe: The entire divorce process is limited to 20 weeks from application to final decree.
• Mutual Consent Petition: The first legal step is to file a Mutual Consent Petition, indicating agreement on divorce and resolution of property, alimony, and child responsibilities.

Child Custody

Child Custody is the legal right and responsibility of taking care of a child as well as making decisions for him or her by a parent or guardian. The law in the context of child custody in India is different from the religion of the parents and is formed upon Acts like Hindu Minority and Guardianship Act, 1956. 

Types of Custody

• Sole custody: The single parent gains both legal and physical custody 
• Joint custody: Each of the parents achieves legal custody, while one has a greater percentage of time with the child
• Shared custody: both of the parents split an equivalent amount of time with the child

Custody After Divorce

Either one of the divorcing or separating parents can apply for sole physical custody of any divorce case

Visitation Rights

The non-custodial parent normally has visitation rights, which would entitle the child to see that parent regularly, including holidays, weekends, and special events.

Custody Issues

The family court awards custody for the care and safety of the child. Physical custody refers to where the child spends most of his or her time, and parents have to provide for the child’s fundamental needs like food and shelter.

Considerations

When the visitation rights are determined, the court will consider the following considerations:

• Age of the child
• Distance between the parent’s home
• Holidays and special days
• Welfare of the Child

The child’s welfare is put first by a court when it decides the visitation rights. The rights should not hinder the smooth running of the school or other daily schedules of the child.

Safety Issues

Nevertheless, if the safety in parenting one parent is breached, the court may grant full physical custody to the other parent. If the child is opposed to staying with one of the parents, then it may require some professional help from a counsellor or family lawyer. This is an all-round approach to determine the best interest and the safety of the child in parental separation or divorce.

Property Division

Property division, also known as property distribution or equitable distribution, is the process of dividing assets and debts between two parties in a divorce or separation.  Therefore, this is the division of assets and debts regarding any couple’s separation through divorce. The main principle it says is that every individual should be given what is owned jointly by them. Here is a list of some of the most important elements taken into consideration while dividing the property:

Important Factors Regarding the Division of Property

• Title Ownership: When the family courts make decisions about property rights, they look into the ownership title 
• Spousal Contribution: It takes into account the contribution of both spouses 
• Co-ownership: The ownership nature is co-owned or separate 
• Fiduciary Relationship: If spouses can prove their contribution towards finances, then the property of the spouses can be divided as per individual equity.

There are two ways of Dividing up property: by a court judgement or by mutual agreement. In some states, a judge will divide it up as they see fit rather than down the middle, which means your division of your assets would likely not be equitable.

Understanding property distribution law and related ideas, such as partition deeds, testamentary succession, and regulations to partition the land, can be the fundamental requirements for the proper provision of a fair property settlement to meet any contention between members of a family.

Adoption

Adoption is a legal process through which the rights and responsibilities of the biological parents get permanently transferred to the adoptive parents and that person or couple may assume the parenting rights of the child:

Issues in Adoption

Problems that can present with adoption are as below: 

• Control: A child believes that he or she will be ripped from their life and into the arms of strangers.
• Transitions: They may resist changing to a new family, fear abandonment, do not sleep, or nightmares about kidnapping.
• Mourning: A child may act with symptoms of bereavement, and one should not miss this behaviour as attention deficit/ hyperactivity disorder (ADHD).
• Psychological Issues: Adopted children are the victims of development and mental health conditions in association with impermanence in preparation for placement and resultant trauma.
• Statutory Perspective: The procedure for adoption is quite cumbersome and involves a court process besides checking the eligibility criteria as set under various enactments, such as the Guardianship and Wards Act Of 1890, the Hindu Adoption and Maintenance Act of 1956, and the Juvenile Justice Act of 2015. A more relevant unit for the adoption process comes from the District Child Protection Unit for the betterment of a child.

Types of Adoption

 There are five kinds of adoption, such as:

•  Foster Care Adoption: Adoption of a child through the child welfare system
•  Independent Adoption: Adoption of a child by a source other than an adoption agency, such as a family lawyer or physician 
• Adult Adoption: Adopting an adult, usually for inheritance purposes 
• Domestic Adoption: Adopting a baby or child born in India
• International Adoption: Adopting a child born in another country.

Alimony

Definition

Alimony is an order requiring the payment of money to a spouse or former spouse from a court as part of a separation or divorce. That is, the fundamental rationale of this payout is to provide financial support to a spouse who earns a smaller income or even no income at all. Commonly referred to in some jurisdictions as spousal maintenance, alimony can be awarded to either husband or wife. Traditionally, in a heterosexual marriage with children, the breadwinner has been the husband, and the wife has sacrificed her career for childcare, leaving her at an unsatisfactory point in the divorce process.

Types of Alimony Laws

The states have different forms of alimony.:

• Temporary Alimony: This is an alimony paid while the divorce is still underway, hence bearing the cost incurred in divorce and daily living expenses; it ends when the divorce is finalised 
• Permanent Alimony: It is paid monthly, continuing until either death of a spouse or remarriage of the lower-income spouse 
• Rehabilitative Alimony: Paid to support the spouse who is in the process of obtaining education or training for future employment.They are entitled to its termination after an indefinite period of time or when the payee becomes self-supporting 
• Reimbursement Alimony: It is paid to reimburse one spouse for expenses such as tuition or employment-related training to improve  their employability and is only paid once.
• Lump-Sum Spousal Support: Instead of distributing marital property, the family court awards it when one spouse waives all marital property.

Determinants of Alimony

When awarding alimony, the judges will take into consideration a number of things, such as: 

• Standard of Living : The court looks at the standard of living during the marriage to decide whether an award of alimony is necessary 
• Contributions to the Marriage: Contributions that are made through work as a homemaker, childcare, and job-related support are considered 
• Property That Enters the Marriage: There is consideration of the value of any property that enters the marriage 
• Earning Capacity: The ability to pay alimony by either spouse is considered; in other words, that both spouses have the same incomes, alimony may perhaps not be awarded 
• Age and Health: Both the physical and emotional condition of both spouses are taken into consideration 
• Marital Misconduct: If one spouse committed adultery, the dependent spouse may be eligible to receive alimony 
• Needs of Each Spouse: Financial needs, living costs and liabilities along with obligations of both spouses are considered.

Liabilities and assets, social status and standard of living, statutory deductions, and expenditure on children’s education and upbringing are also considered.

Domestic Violence

Domestic violence refers to violence or abuse in a domestic context, such as marriage or cohabitation. It is often identified with intimate partner violence-a crime committed by one person in an intimate relationship against the other. Plus, it sometimes includes violence against children, parents, and the aged. Moreover, the forms of domestic violence could be physical and verbal, as well as emotional, economic, religious, reproductive, financial, and sexual abuse, and most often occur simultaneously.

Types of Domestic Violence

Domestic violence may be one or all of the following:

• Bodily Harm: Inflicting or threatening to inflict physical injury 
• Emotional Abuse: Undermining a person’s self-esteem or emotional well-being 
• Sexual Abuse: Coercive or forced sexual activity, without consent 
• Financial Abuse: Exercising power by controlling a partner’s financial resources 
• Psychological Abuse: Fear as enacted through intimidation or manipulation 
• Technological Abuse: Using technology to stalk, harass, or control a partner.

Law Protections for Victims

Some of the laws giving safety to the domestic violence victims in India are as follows:

• The Protection of Women from Domestic Violence Act, 2005: An Act that provides protection against various forms of domestic violence. Relief and safety orders include residence, protection, etc.
• Indian Penal Code, 1860 (Section 498A): Cruelty by husband or his relatives of a woman. It abolishes harassment and torture.
• Indian Evidence Act, 1872: Not particularly focused on domestic violence, but it does include rules regarding evidence that might be available when presenting the case in court for cases related to domestic abuse.
• Dowry Prohibition Act, 1961: The section addresses crimes related to dowry and makes giving or receiving of dowry illegal.
• Criminal Law (Amendment) Act, 2013 Section 354A: These laws provide crimes relative to sexual harassment, which may be applicable to cases related to domestic violence.
• Juvenile Justice (Care and Protection of Children) Act, 2015: The rights and welfare of children are protected in addition to the fact that children become victims of domestic violence.
• National Commission for Women Act, 1990: The Act recognises the National Commission for Women or NCW which addresses the rights of women and consequently, domestic violence.
• Prohibition of Child Marriage Act, 2006: This act aims at preventing child marriage, hence relevant when the bride is a child victim of domestic abuse.

Grandparents Right

In India, grandparents even have their rights to visitation or even custody of the grandchildren. In any case, rights are governed by the best interest of a child. When granting visitation or custody rights to grandparents, the family court will consider the following factors:

Welfare of child

The welfare and well-being of the child generally shall be paramount while deciding whether to give grandparents visitation or custody rights.  

Ability of grandparents to provide

Whether the grandparents can provide a stable, supportive environment for the child.

Relationship with the child

Whether there is established contact between the grandparents and the child.

Parents’ authority

Whether visitation rights will adversely affect the parents’ authority.

If the parents are either dead, missing, or have abandoned the child, then the grandparents can still apply for custody.

The grandparents should first consult a family law attorney to get advice on the legal process and the specific personal law applicable to their family 

Guardianship

 A guardian is a person appointed to care for another or to take care of his property, of course taking the responsibility of giving protection and taking care of the other person. That includes making all legal decisions on behalf of that person known as the ward. Generally, guardianship applies to minors-that is, individuals who have not reached 18 years of age-as well as persons who, because of physical or mental defects, are incapable of managing themselves or their property. Throughout history, the condition of minorities has been the primary basis for appointing guardians in virtually every society.

There exist different types of guardians, such as:

• Natural Guardian: Usually the parents of the minor.
• Testamentary Guardian: A guardian named in a will by a parent who dies.
• Court-Appointed Guardian: An appointed guardian under a court order.

The fiduciary duty of the guardian to the protected person includes acting in the best interests of the ward. Indeed, he should not be involved in any conflicts of interest and needs to make decisions with care and prudence.

In appointing a guardian, the court takes into account a number of factors among them being the age, sex, and religion of the minor as well as the character and capacity of the proposed guardian. 

The court also looks into the wishes of any deceased parents and the relationship that the proposed guardian had with the minor before or at the time of their death.

Paternity

Paternity is being an eligible male whose legal status is that he is the father to a child. The creation of paternity is essential in so many legal rights and responsibilities including child support, inheritance, among others.

Paternity of Father

Paternity can be established in various ways: 

• By marriage between the father and the mother of the child at birth,  
• By voluntary acknowledgment of paternity, and then by court action. 

Following this acknowledgment, some rights and duties are accrued towards the upbringing of the child.

Paternity of Children

Paternity therefore, forms the basis of attaching support and benefits to the children by both parents. Paternity also has an implication on the custody and visitation rights. DNA testing would be used in litigation matters where disputes raise and confirm biological connections in cases of paternity to ensure that children have their father’s legal right and protections.

Child Support Enforcement

Child support, also known as child maintenance, is a course of recurrent, periodic payments by a parent for the financial benefit of a child arising from the termination of marriage or similar relationship. Payments are usually provided for by an obligor-that often happens to be a non-custodial parent-to an obligee, who happens to be most often the custodial parent, caregiver, or guardian-on behalf of children from such a terminated or non-existent relationship.

Deterrents for Not Paying Child Support

India makes the law for enforcement of child support by imposing various forms of sanctions on the defaulting parent, including legal and financial sanctions such as:

Legal Consequences: Class I Magistrate can sentence the pay-tard parent to a fixed amount of monthly maintenance. Refusal or failure to comply with the order may also lead to issuing of a warrant and imprisonment for up to one month. The pay-tard parent may, in addition, be found guilty of contempt of court and be fined upon.

Financial Effects: Arrears of child support can be forwarded to credit bureaus, which negatively affect the credit score of the non-paying parent. Thus, it becomes impossible to get loans or any kind of credit line.

Confiscation of Properties: The family court may seize and sell the properties of the non-paying parent to pay child support.

Suspension of Licenses: The state can revoke different kinds of licenses held by the non-paying parent, including driving, recreational, and professional licenses.

Surrogacy

Surrogacy is the arrangement wherein a surrogate mother agrees to carry a child for the intended parent or parents. Immediately after delivery, the surrogate surrenders all rights of custody and guardianship over to the intended parent(s). As such procedure involves complicated legal and medical procedures, it is best guided through the expertise of professionals and more so support groups. 

Requirements for Surrogacy

Eligibility criteria for surrogacy in India are as follows:

• At least one partner should have proven infertility 
• Married couples who were not able to conceive despite unprotected intercourse or a medical condition that does not allow conception 
• Couples with a medical condition like an absent or abnormal uterus or where the uterus has been taken away; for example, in cancer cases or other reasons 
• Surrogacy is allowed if the gestational surrogacy is carried out for medical purposes 
• Indian widows and divorcees in the age group of 35 to 45 years are also allowed to have surrogacy.

Who Can Be a Surrogate Mother?

Eligibility to Become a Surrogate Mother in India:

• She must be a married woman with at least one child 
• Her age must be between 25 to 35 years 
• She must have a certificate of medical and psychological fitness from a registered physician 
• Should not be allowed to provide her gametes for the surrogacy 
• Can be a surrogate only once in lifetime 
• Be insured 36 months, also for postpartum delivery complications.

Surrogacy Bill

The Surrogacy Regulation Bill was introduced in November 2016 but could not come through. The bill proposed prohibition of commercial surrogacy and commissioning parents to comprise only infertile couples. However, the Surrogacy Regulation Bill 2020, approved on 26 February 2020, permits any willing woman to act as a surrogate and governs bodies overseeing the process. The new bill does not support commercial surrogacy, provides for altruistic surrogacy, and does not mandate the definition of infertility; therefore, medical needs that couples may have are possible.

Ethical and Legal Consideration

In 2002, the Indian Council for Medical Research issued guidelines for surrogacy, which were accepted by the government in 2005. For its part, Law Commission of India, as well gave indications of the importance of surrogacy with its 228th report proposing the following guidelines:

• Surrogacy arrangements are governed strictly by a contract outlining all terms, including consent by the surrogate, agreement by her family, and medical procedures 
• Provision of financial support for the surrogate child in case the intended parents die or get divorced
• Life insurance coverage should be guaranteed in surrogacy contracts
• At least one of the intended parents should serve as a donor in order to have a biological connection with the child and to avoid a risk of child abuse
• The surrogacy arrangement should involve a single intended parent who is also a donor. If this is not achievable, adoption should be undertaken 
• Surrogacy should treat the surrogate child as a legal child of the commissioning parent(s) without the need of adoption 
• Birth certificates for the child should carry only the name of the commissioning parent(s) 
• There must be the right to privacy of the donor as well as the surrogate mother 
• Sex-selective surrogacy is strictly prohibited, and the abortion cases would have to abide by the ‘Medical Termination of Pregnancy Act, 1971’.

Conclusion

Family law encompasses a wide range of legal matters related to familial relationships, including marriage, divorce, child custody, adoption, and more. It addresses the rights and responsibilities of individuals within a family structure and aims to protect the best interests of children and vulnerable parties. Common issues in family law often require legal guidance to navigate complex emotional and legal landscapes, ensuring that rights are upheld and conflicts are resolved fairly. Understanding the fundamentals of family law can empower individuals to make informed decisions during significant life changes. Contact Zolvit lawyers for quick solutions for Family law issues.