When asked by a reporter why he wanted to climb Mount Everest, renowned British mountaineer George Mallory famously replied, “Because it is there.” Mallory ultimately perished while attempting to reach its summit.
Dear overseas Indian spouse, you do not have to climb the proverbial Everest. You do not have to choose an Indian divorce court simply because it is there. You have a choice.
For many overseas Indian couples, the first instinct when a marriage breaks down is to assume that the divorce must take place in India. After all, the marriage was solemnized there. The parties are Indian citizens, or at least one of them is. Their families continue to reside in India. Indian courts undoubtedly have jurisdiction under the applicable matrimonial law. But jurisdiction alone does not answer the more important question: which court is the better forum to resolve the dispute?
This article is intended to dispel a common misconception among many overseas Indians that obtaining an Indian divorce is necessarily safer, more advantageous, or somehow more “valid” merely because the marriage took place in India. It is not.
Nor is this article intended to compare the family laws of all fifty American states. Family law differs considerably from state to state, and every case depends upon the applicable law and its own unique facts. Rather, the purpose of this article is to explain why many Indian couples who have established their lives in the United States should at least consider whether obtaining a divorce in New Jersey, New York, or another appropriate American jurisdiction may be the more practical and sensible course. The answer often lies not in where the marriage began, but in where the parties’ lives actually exist today.
Jurisdiction Is Not the Same as the Appropriate Forum
It is entirely possible for more than one court to possess jurisdiction over the same marriage. An Indian court may have jurisdiction because the marriage was solemnized in India, because one or both spouses continue to be domiciled there, or because the applicable matrimonial statute confers jurisdiction upon the Indian courts. At the same time, a court in New Jersey, New York, or another American state may also possess jurisdiction because the parties have become residents of that state and satisfy its residency requirements for divorce.
The existence of concurrent jurisdiction does not mean that both forums are equally suitable. The more meaningful question is which court is better positioned to resolve the parties’ present circumstances fairly, efficiently, and comprehensively. For many overseas Indian couples, the answer may well be the jurisdiction in which they have lived, worked, accumulated assets, and raised their children for years.
When an American Court May Be the Better Choice
No single factor determines the appropriate forum. Instead, the decision should be based upon a realistic assessment of where the parties’ lives are centred. Where both spouses have established their careers in the United States, their financial lives are ordinarily located here as well. Employment records, tax returns, retirement accounts, bank accounts, business interests, and financial institutions are often all located within the United States. Litigating such issues before a court that already has access to the parties, the relevant evidence, and the assets may prove considerably more practical than attempting to resolve those same disputes from thousands of miles away.
The same is true where the parties have acquired substantial property in the United States. Whether the marital estate includes a residence, investment accounts, retirement benefits, or other assets, an American court is generally well placed to identify, value, and distribute property situated within its jurisdiction.
Children may present an even stronger reason for considering an American divorce. If the children have established their home in New Jersey, New York, or another American state, questions relating to custody are frequently governed by that state’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The child’s education, healthcare providers, extracurricular activities, and daily life are already centred within the United States. Consequently, the court that is best positioned to evaluate the child’s best interests is often the court in the child’s home state.
The parties’ future plans should also be considered. If neither spouse has any immediate intention of relocating to India and both expect to continue living in the United States, there may be little practical benefit in asking an Indian court to supervise the dissolution of a marriage whose future consequences will almost entirely unfold in America.
Finally, consideration should be given to the likelihood of settlement. Where the parties have already reached agreement, or where there is a realistic prospect of negotiating a comprehensive resolution concerning custody, parenting time, support, and the division of assets, American courts routinely approve carefully drafted marital settlement agreements. Such settlements allow the parties to retain greater control over the outcome while reducing both the financial and emotional costs associated with prolonged litigation.
In many American jurisdictions, particularly where the parties cooperate and resolve their disputes through agreement, divorces may often be concluded in a matter of months rather than years. The precise timeline naturally varies from state to state and depends upon the individual circumstances of each case.
The Misconception Regarding Recognition in India
Perhaps the greatest hesitation among overseas Indian couples concerns the recognition of a foreign divorce in India. This concern is understandable, but it is frequently overstated.
Indian law does not automatically refuse to recognize every foreign divorce, nor does it automatically recognize every foreign divorce. The answer depends upon the facts of the particular case and the principles governing the recognition of foreign judgments.
Foreign divorces are considerably more vulnerable to challenge where the decree was obtained ex parte, where one spouse did not meaningfully participate in the proceedings, where one spouse consistently challenged the jurisdiction of the foreign court, where parallel matrimonial proceedings were pending in India, or where the decree was granted upon a ground that is not recognised under the applicable Indian matrimonial statute.
By contrast, the legal position is often materially different where both spouses voluntarily submit themselves to the jurisdiction of the foreign court, fully participate in the proceedings, negotiate a comprehensive marital settlement agreement, and clearly acknowledge before the court that they understand and voluntarily consent to the terms of that agreement.
No lawyer can responsibly guarantee that any foreign judgment will be recognised in every conceivable circumstance. However, the widespread assumption that every American divorce involving Indian spouses is inherently susceptible to challenge in India is inaccurate. A fully participated foreign divorce based upon informed consent and a comprehensive settlement stands on substantially firmer ground than an ex parte decree or one obtained without the genuine participation of both spouses.
The Right Question to Ask
Many overseas Indian couples begin by asking the wrong question. They ask, Where were we married? The more useful question is, Which court is best positioned to resolve our family’s present circumstances? Where do we live? Where do we work? Where are our assets located? Where are our children being raised? Where do we intend to continue living after the divorce? Which court can most effectively supervise a negotiated settlement or adjudicate the issues if settlement proves impossible? These questions often produce a very different answer from the one the parties initially expected.
Conclusion
This article should not be be read as a comparison between the family laws of the United States and India, or as a discussion of the substantive law of any particular American state.
Its purpose is far more modest. Many overseas Indian couples proceed on the assumption that because they married in India, they must divorce in India. That assumption is often incorrect. Where both spouses have established their lives in the United States, where they are employed here, where they own property here, where their children reside here, where neither intends to relocate to India in the foreseeable future, and where there is a realistic prospect of resolving the case through agreement, obtaining a divorce in New Jersey, New York, or another appropriate American jurisdiction may prove to be the more efficient, practical, and comprehensive solution.
The place where a marriage began is undoubtedly important. It should not, however, be the only consideration in deciding where that marriage should end.