Indians are litigious by nature and tend to settle the score hatefully. A lot more than ‘a mere relationship between two individuals’ is at stake in the event of irretrievable break down of marriage. A number of issues need to be addressed to put a closure to the breakdown of a relationship including Divorce, financial settlement and the children. All these issues each require a separate column. I will confine the writing to the parallel proceedings which have become a norm in the event of an Indian Australian separation between the couple.
The situation occurs in the cases of first-generation migrants who after going through hard yakka, gets the residency and returns to India for marriage. The marriage is solemnised with pomp and show the intervention of the parents (acting as traditional ‘tinder’ app). A migrant living in Australia for a reasonable time finds the spouse imported from India being non-compatible. This leads to bickering and arguments, family violence, intervention order and even criminal charges of assault in some cases. The legal wheel in the event of separation runs differently in Australia and in India. The implications of a break-up are more serious, complicated and daunting in India in comparison with Australia. The reason behind easy exit is ‘no fault theory’ being the basis of any discussion for separation between the parties under the Australian laws in contrast with the strict regime of separation which statutorily still considered a taboo and the marriage being a sacramental bond under Hindu legal jurisprudence.
The family law in Australia is comprehensive and provides a proper mechanism for the protection of interests of the people holding Australian domicile, residents and citizens. The provision includes to ensure the safety and well being of the people involved in addition to the matters of property division between the parties and the issues relating to the parenting of the children. The Family court has a broad discretion to determine the property disputes of separate families. Interestingly, the Australian law does not penalise the perpetrator of family violence for the actions as a negative financial contribution or the future needs of the parties in contrast with the Indian family law regime. In certain limited circumstances the issue of family violence may be considered as a relevant factor in determining the property disputes. On the balance of probabilities, one need to demonstrate that the party was subjected to a violence ‘course of conduct’ and led to a significant impact on the contributions and/or made those contributions significantly more arduous.
The parenting of the children is another complex issue for which the resolution is based on the equal parenting of the children in contrast with the sole custody as is generally granted under the Indian family law. The paramount consideration of the court while making a parenting order is the best interest of the children. The best interests of the child is determined by rendering prime consideration to the benefits of having a meaningful relationship with both the parents AND the need to protect the child from physical or psychological harm from being exposed or subject to an abuse or neglect or family violence.
The tendency to issue proceedings in more than one jurisdiction results in immense stress and harassment to the suffering party. It is imperative that the legal process comes to the help of the sufferer and save the party from the multiplication of litigation for the same cause. The family law act empowers the court to issue a different injunction(s) to protect a party to the marriage, the protection and welfare of the child including restraining a party to initiate or continue with parallel litigation in an overseas jurisdiction for the same cause of action in relation to the family law matters. Alternatively, the court can order the proceedings in Australia be dismissed in the light of pendency of family law matters in India. While making such an injunction the court is guided by the principles of ‘proper jurisdiction and forum test’ to determine the disputed issues.
Gurpal Singh is the principal lawyer of Melbourne law firm, Saundh Singh & Smith Lawyers | W: www.sssl.com.au
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