This article is written by Gaurav Kumar, from Surendranath law College (University of Calcutta). This article discusses the kinds of disputes that a family lawyer can help to settle.
In a business family, well-reputed family the disputes are settled by a family lawyer. This family lawyer is appointed by the family and is obliged to take care of any kind of disputes that arises in the family. The nature of the disputes can be different pertaining to family law. The area of family law is different from that of criminal and civil law. The disputes include divorce proceedings, spouse support and alimony, child custody and family businesses.
In the larger and reputed families, the family lawyer helps the members of the family to mediate and settle these types of disputes. The family lawyer tries to understand the legal aspect of the dispute and strives for settling any disputes through the amicable settlement of parties outside the court saving time and money of the family. Managing wills, estate, child custody agreements, managing divorce problems, and prenuptial agreements are the major work areas of family lawyers. The areas of work under family law is not only related to the matrimonial issue but also the works arising outside the marriage in a family. The role of a family lawyer in a family can be diverse. The family lawyer can be a mediator, legal advisor and can also represent his party before the court assuming the role of an attorney. In this article, we will analyse the kinds of disputes arising in the area of family law which a family lawyer can help the party to settle.
This is one of the major areas covered under family law. In a family sometimes the couple reaches a point where they have a huge disagreement with one another and they are unable to stay with each other and want to end their marriage. In such a situation, the family lawyer tries to reconcile and avoid separation or divorce. In case the reconciliation fails, the lawyer files for divorce proceedings. The divorce proceedings are generally of two types- one is divorce by mutual consent of two parties and second is contested divorce. In the first type, both parties mutually agree to the dissolution of marriage by filing the divorce petition in the family court.
The second one contested divorce occurs in the case where the marriage is obtained from fraud or concealment of facts like insanity, suffering from a disease like leprosy, one of the party is found to be indulged in adultery, cruelty, religious conversion, dissertation and world renouncement. The family lawyer assists the party to understand the legal technicalities of the case and obtain the divorce through the family court. At any point of proceedings, if the lawyer finds that the parties agree to settle their matter amicably outside the court, the lawyer assists its party and helps to settle the dispute.
The legal provisions of divorce in India are regulated by different laws according to the religious faith of the parties. If the parties belong to a Hindu religious faith the divorce shall be regulated through the Hindu Marriage Act, 1955. If the parties are Muslim, Christian, Parsi or Jain the respective personal laws shall apply for the purpose of divorce. The persons who have either renounced their religion or belonged from different religion prior to their marriage can seek divorce under the Special Marriage Act, 1956. If one of the spouses is a foreigner the Foreign Marriage Act, 1969 shall apply for the divorce proceedings.
Spouse support and alimony
When the divorce proceedings are in progress and the spouse is dependent on her husband financially or in another way, the family lawyer may seek the support of one of the spouses. The financial support rendered by the person to their spouses is known as alimony. The purpose of the alimony is to extend the financial support to the spouse in case he/she is dependent. The party can make an application before the competent court for the purpose of alimony amidst the divorce proceedings. In case the judge is satisfied with the circumstances he/she can pass the order for granting alimony. However, taking the financial condition of the spouse the alimony can be continued further after the decree is granted.
The family lawyer can also help either of the spouses in getting maintenance if the condition provided thereto allows Section 125 of the Code of Criminal Procedure deals with the provisions of maintenance. It states that any person who is unable to maintain himself/herself or his/her child can directly seek for maintenance making an application before the 1st Class Magistrate.
The parties who are having their divorce proceedings ongoing in the court can also file a suit seeking the legal guardianship of the child. The term Child custody refers to the practical and legal relationship between the child and the persons. The custody of a child confers the obligation on either of the parents to care, raise and maintain the child. The judge before deciding the child custody examines certain aspects such as parent’s mental health, parent’s financial status. Section 26 of the Hindu Marriage Act is bestowed with the provisions of child custody. However, if the couple belongs to another religious faith, the provisions of respective personal laws shall be applicable. The family lawyer represents either of the parents for the custody of the child in the court. The family lawyer also helps the parents to change the custody agreements if it is required.
The family lawyer also helps in settlements of arising disputes in the family business. The disputes in the family business include the taking over of the business, proprietary disputes, drafting commercial agreements pertaining to the business. The family lawyer also takes care of the tax-related issues and advises from time to time. The family lawyer also drafts the legal documents which determine the rights and liabilities of the party. In case the mediation is required to settle the business-related disputes, the family lawyer represents its client and helps in resolving its disputes.
Estate and will management
The family lawyer also helps the parties to decide their status of the property in future after their death. For the purpose of bestowing the property to the future heirs, the lawyer drafts the will according to the direction of its client and helps him to decide whether the estate will be regulated according to the will or partition in case legal heirs are present. The lawyer also helps the legal heirs to decide the partition of the estate and mediate in case of dispute on rights over the estate.
Protection orders against domestic violence
Today the case of domestic violence against women has witnessed a high surge. The victims who receive the threat from the aggressor may seek protection against such a threat. The protection may be of interim or of permanent nature. Sometimes the woman is seen to have been subjected to domestic violence from her husband or his family members. The woman can raise her voice against such violence and seek protection. The family lawyer assists such victims in presenting her case before the court and ensures her protection against the aggressor and the person(s) who has subjected the women to domestic violence. The provisions for the protection of women against domestic violence is provided under the Domestic Violence Act, 2005.
Adoption of Child
The couple who are seeking to adopt a child can also seek help from their family lawyer. The family lawyer helps them to get legal documents prepared for adopting the Child. The provisions of the Hindu Marriage and Adoption Act 1956, is applicable for the purpose of adopting in such cases. However, this law is applicable for only Hindu couples only. There are no adoption laws available for Christian, Parsi and Muslims, so the couple interested in adopting the child have to approach the Court under the Guardian and Ward Act, 1890. The applicant has to approach the Child Welfare Committee for the purpose of adopting the Child. The CWC gets the NOC clearance and acceptance nod from the parties and presents the Child in the Court before the judge. The judge after examining all the circumstances passes an order for adaptation. The family lawyer helps the couple in each stage till the child is adopted.
Civil partnership and same-sex marriage
In India, same-sex marriage is not recognised. The apex court has only decriminalised Section 377 of the Indian Penal Code opening a way for the LGBT community people for same-sex marriage. However, in the absence of a legislative provision in India, it is still an uncommon thing. In countries like the U.S, the concept of Civil partnership is recognised for the purpose of cohabiting. Despite the absence of legal provisions the persons from the LGBT community seeking to be in Civil Partnership can seek the help of family lawyers. The parties can enter in the prenuptial agreement for the purpose of Civil partnership/union. The family lawyer can draft such an agreement for his/her client.
A person seeking to change its name or title can also approach the family lawyer. The family lawyer will assist him/her in making an affidavit for the same stating the change in name as taken in oath before the oath officer. The lawyer also tells him/her regarding the provision of publishing such changes in the public through the newspaper.
A marriage where the parties belong from a different religion or is a foreigner
The provisions of the Special Marriage Act, 1954 is applicable to the persons, who belong from different religious faiths and want to get themselves wedded. Collectively we can say that there was a need for such a law where the persons who have renounced their religious faith and belief can marry outside their belief. The family lawyer also helps the parties who belong from different religious faiths and are seeking to get themselves married under the provision of Special Marriage Act. The persons have to reach before the registrar office and get themselves registered for their marriage. However, there is a provision for the parties to undergo a one month notice period. In such a period the name of the parties is placed before the notice board seeking any kind of obligation raised against the parties.
Recently in Safiya Sultana v. the State of U.P, the High Court of Allahabad said that the mandatory provision of publication of notice of intended marriage under Section 5 of the Special Marriage Act, the Allahabad High Court held that such provision violates the “Right to privacy” of the individual and it shall be optional, not mandatory at the option of the parties. After the notice period, the parties get their marriage registered in the office. The parties must satisfy certain requirements such as as- age requirements and they should not be in the prohibited relationship of getting themselves married under the said act. The family lawyer assists the parties in every step and gets them married under the Special Marriage Act, 1954.
In case, one of the parties seeking marriage belongs to another nationality the provision of Foreign Marriage Act, 1969 shall apply on such conditions. Under such conditions, the ceremony for the purpose of marriage is not required. One has only to get his/her marriage registered in the Marriage Registrar office.
The family lawyer plays a vital role in matrimonial works and disputes arising out of t. However, apart from it, they provide legal advice in the estate-related matters, family business matters and assists even in settling the disputes arising inside the family. The family lawyer works moreover like a family member and assists his/her client in every best possible manner if any kind of disputes arises in the family.
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