1. See both of you are covered under not only by The Hague Service Convention but also by The Hague Conference i.e. member countries adopting to European Commission Judicial Network for civil and commercial Laws comity and as well as covered under UNIDROIT and India is a Member State to all these three since we have ratified them respectively and we have Central Authority to promulgate the same when in comity conflict situation so are Country A and Country B in reference to generic context is my opening iGyan.
In comity conflict situation these three are referred r/w our Civil Procedure Code by Indian Courts to say if such foreign divorce is allowed by us or is left open (means set aside such divorce) and thus leave room for challenge (appeal) as were the case so far which you asked me to refer to.
2. Now let me make you understand how things are going to work in your favor; First bar to remove for using The Hague Service Convention is that both parties should be holding PR status of member States under this Convention. You both passed that bar assuming your PR status falls under one of the 27 member States of EU (and not specifically confined to below 14 member States and why I specified 14 member States I will cover that later). Second bar is that both couples should not share same nationality. Hence if you are pushing for divorce internationally no matter married under HMA then it is suggested to take Nationality (dual) of one of the later mentioned 8 member States. The last bar(s) which entiles after removal to involve international divorce are in two case scenarios i.e. if the couple does not agree the legislation of the country where they normally live (or last in which they lived together) will be applied OR if this is not possible then the law of their country of origin and if this is not shared the law of the country where the divorce is filed will be applied; Bingo !!. The last sentence is the most suitable catch for you here provided you take nationality of one of the country under later described 8 member State.
3. However since it is still not clarified if you are PR of any of the below 14 member States of EU who have given liberty to its citizens to choose grounds under local divorce laws that suits them to seek divorce out of the 27 member EU States and out of them 14 member States which currently agreed on ‘divorce shopping’ are, Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.
4. Now allow me to do for free some brief explanatory notes on guess work on which would be most suitable “divorce shopping” member State whose PR status you should have so that Indian laws do not say a word after seeking such international divorce decree and they are in generic J - AUSTRIA (allows divorce on IrBM grounds), BELGIUM (allows divorce on adultery; excesses physical or mental cruelty and de facto separation grounds), BULGARIA (allows divorce on infidelity; habitual drunkenness and incompatibility grounds), FRANCE (allows divorce on MCD; IrBm and no fault based grounds), GERMANY (allows divorce on only one ground that is IrBM), HUNGARY (here the divorce law determines the legal prerequisite of divorce with a general clause which can be very wide based as grounds), ITALY (allows divorce if either spouse proves to Court where after the wedding has taken place the other spouse is found guilty by a court of any particularly serious criminal offence), LATVIA (allows divorce on three grounds; living separately for three years OR living separately less than three years or on MCD with or prior to three years separate living based ground), LUXUMBORG (allows divorce on legal separation of at least three years; MCD and cruelty based grounds), MALTA (allows divorce on no fault and legal separation grounds), PORTUGAL (allows divorce on MCD; de facto separation for three consecutive years; de facto separation for one year if the divorce application by one of the spouses is unopposed by the other; a change in the mental faculties of the other spouse when this has lasted for more than three years and when because of its seriousness it compromises the possibility of communal life; absence without any news from the absentee for a period of not less than two years grounds), ROMANIA (allows divorce on IrBM; fault and legal separation based grounds), SLOVENIA (allows divorce on grounds that the marriage is "unbearable for whatever reason". In practice this is not difficult to prove; There is no need that the marriage is "unbearable" for both partners; The fault of one of the partners, which caused the "un-bearableness", has no influence on the decision of the judge based) and finally SPAIN (the only thing that needed is the respect of a minimum term to count from the celebration of the marriage before suing for divorce which is three months should have been past from the celebration of marriage based ground).
5. Thus it is seen from generic explanation of grounds of local divorce laws for Indian divorce applicability you should be living under PR status either in Belgium OR Bulgaria OR Hungry OR ?Latvia? OR ?Luxemburg? OR Portugal OR Romania OR Slovenia as any decree passed under international ‘divorce shopping’ route in any of the local court of one of above 8 member State country is going to be valid here in India. You have to re-read the respective grounds of these 8 member states and tally it with our HMA and bingo !!
6. But all these comes with certain bars and I see forthcoming certain bars that is that the moment you invoke your rights under international ‘divorce shopping’ route while not able to show PR status of any of the above 8 member States the local Attorney of your current PR status State will romanticize you with the goody good of opting under “IrBM ~ irretrievable breakdown of marriage” as ground for divorce and rope you by citing it is the ‘easiest route’ showing Country A and Country B residency bar of spouses are cleared. beware of opting in for such route as it is still not recognised in HMA in India.
7. But once Paper filed on IrBM grounds no-doubt divorce will be granted speedily but same ‘ground’ is as yet not applicable in India and this month similar situation fallen Indian couples case was set aside by Delhi HC who were exactly mislead by local Attorney’s Office in their PR member State into filing under ‘IrBM ~ irretrievable breakdown of marriage’ ground divorce wherein one spouse was living in UK and another in France and our Indian Court did not allow such grounds as valid ground under HMA.
8. Moreover like I hinted earlier, going via The Hague Service Conference route gives one spouse chance to appeal till 1 year such decrees and then under member country local civil laws (India) with flimsy condonation of delay application he can always get delayed appeal allowed so neither The Hague nor the divorce thus you may get is going to help push matrimony STATUS envelop little further is my view. You can still try investing your insurance money locally to seek legal opinion on recognition of international divorce judgment at international level contacting any local attorney’s office and the result will be the same as hinted in my reply paras.
9. If you understood all the above paras then the most safest options are two for you; FIRST option is to remove bars mentioned in para 2 and thus seek ex part divorce using local laws of one of the 8 member States which cannot be challenged in Indian courts under international comity Rules at all and by this mode neither of you need to set foot on Indian soils OR show living in a country under PR status and opt international divorce as those countries grounds are also applicable under HMA.
Synopsis for option one:
There are 27 member States in EU who follow The Hague Service Convention. Out of them 14 have ratified The Hague Convention for facilitating ‘divorce shopping’ Further in reference to context out of these 14 member States only 8 member States have grounds matching our HMA which if chosen further by removing two bars, then once a decree pops same can’t be challenged in India viz.; both parties should be living internationally and their respective States would be member of The Hague Service Convention to effectuate process Service of local Court and second bar to remove in reference to context I sthat here parties have same nationality hence one spouse should have local member State’s nationality.
SECOND OPTION in your evolving situation is a scenario when it is not possible to take local State’s nationality is to open up somehow channel for ‘communication’ with your husband and request him to come forward and cover with you this estranged couples last mile i.e. suggest to him that we will hire independently two Advocates in India and give PoA and push consented Divorce through them which is fastest and cannot be challenged as it is a valid contested decree in divorce proceedings while living in Country A and Country B respectively. Here what will happen once he agrees to part ways is that upon selecting respective Advocates the local advocates ship to both of you PoA papers which needs vetting from respective residence country’s Indian High Commissions Office and shipped back along with signature at marked places along with signature on divorce paper which is moved by one spouse. The local advocate files divorce paper with PoA here in India and cause upon process Service to opposite party and the process reaches his Advocate chamber address and the opposite party (acknowledges) flasshes Service at next date of hearing and the first thing Indian Family Court does is send parties for mediation to see if any reconciliation possible. There the respective advocates agree as per instructions already respectively received on ‘consent’ divorce and mediator notes down ‘consent agreements’ and seeks respective advocates signatures on papers and sends complete mediation file to court for drawing ‘consent decree’ in divorce proceedings. There pops a decree from an Indian Court which is a valid / fastest decree and almost impossible to challenge.
Synopsis for option two:
Via simple old fashioned PoA route without setting feet on Indian soils by respective parties. For the same refer to some of my old postings on PoA route divorce to NRI’s / PIO’s / Dual nationality holders in LCI.
This detailed reply needs good amount of re-reading to understand which out of the two methods you have capacity to opt for.
If you have any confusion I prefer you spend insurance money to seek a opinion from local Attorney office as I can only invest this much explanatory time for FREE in Indian legal portal J
IrBM = Irretrievable Breakdown of Marriage
MCD = Mutual Consent Divorce
HMA = Hindu Marriage Act
PoA = Power of Attorney
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