Research

Q. Can parallel divorce proceedings go on in India as well as in a foreign

jurisdiction (Australia)?

The Indian law is silent upon this matter and does not explicitly address the scenario of dual
citizenship and parallel divorce proceedings in different jurisdictions or put any restrictions.
However, if the couple are citizens of Australia, the situation regarding parallel divorce
proceedings may be simplified, as they would generally be subject to Australian law. In such
cases, they would typically file for divorce in Australia according to Australian divorce laws.

However, if one or both parties have significant ties to India, such as property ownership,
financial interests, or family connections, they may also consider initiating divorce proceedings
in India.
This could lead to the possibility of parallel divorce proceedings in both Australia and India.

Q2. Is the divorce process in Australia considered sufficiently prompt, and if so,
what is the typical duration for obtaining a divorce in Australia?

In Australia, the average time consumed to get a divorce is 4 months. Divorce procedure is
generally considered quite efficient, though there are several factors which may have direct
influence upon the time it will take to get a divorce. After the divorce application is filed, parties
must then await court hearings scheduled that may vary slightly with the frequent changes in the
court calendars.

Nevertheless, the new changes have taken place such as court amalgamations such as merger of
the Federal Circuit Court and Family Court, which have been able to speed up the procedures
and this resulted in shorter waiting times in some cases. Just to cite an example, it's possible that
in a recent family law case taken by a Wollongong law office, the difference between the time a
client filed the papers for a divorce and the time a judge heard the case was just five weeks.
Such a deadline can not be the same for every case because it depends on the number of cases
heard, as well as the concrete facts in each case. For instance, it could be cases filed solely by
parents with children under 18 who would otherwise require court time.

After the order of divorce is made, for the one month and the period of one day there is an
additional time period before it finally becomes effective; and a copy of it shall be made
available on the court's website.

Although, most times, cases move along smoothly, unexpected factors such as documents issues
can trigger setbacks in the process. As a whole, although the Australian divorce process is swift,
one ought to expect to meet some demand in this timing depending on the specific situation or
scarcity of court workers.

Does Australia Recognise Overseas Marriages?

Australia recognises marriages that are validly solemnised according to the laws of the country
where the wedding took place.

To be legally recognised in Australia, the marriage must have adhered to the legal requirements
of the foreign jurisdiction.

These may include age restrictions, consent requirements, and proper documentation.

Eligibility to File a Divorce in Australia: Married Overseas Divorce in Australia

For couples who married overseas and now wish to divorce in Australia, certain requirements
must be met to establish jurisdiction.

Generally, either party must be an Australian citizen, regard Australia as their home, or have
lived in Australia for at least 12 months before applying for a divorce.
An Australian Court has the jurisdiction to grant a Divorce if you were married outside of
Australia, as long as at least one of the following pre-conditions applies:

● You or your spouse are domiciled in Australia (domiciled means you regard
Australia as your home and intend to live indefinitely in Australia); or
● You or your spouse are an Australian Citizen; or
● You or your spouse ordinarily live in Australia and have lived in Australia for at
least one year immediately before applying for divorce

To be granted a Divorce by the Australian Court, one must satisfy the usual requirements that the
marriage has broken down irretrievably, be separated for at least 12 months, and satisfy the
Court that proper arrangements have been made for any children of the marriage.

Q. Even if the Australian court does nullify the marriage or grant a divorce, will it
be enforceable in India?
(Kindly find the brief answer at the very bottom)

Divorce in foreign courts

Divorce decree granted by Foreign Courts can be divided into two categories:

1. Mutual consent divorce granted by Foreign Courts.

2. Decree granted in Contested Divorce.

In the case of mutual consent divorce decree, the decree granted by a Foreign Court is considered
to be legal, valid and binding in the Indian Courts by the virtue of Section 13 and Section 14 of
the Civil Procedure Code, wherein Section 13 enumerates the condition when a foreign judgment
would not be considered valid in India and Section 14 states that when the Indian Courts would
consider the Foreign judgment to be conclusive. A decree which is not affected by section 13
does not need to be validated in India and will be considered conclusive under Section 14 of the
Civil Procedure Act.

Australia is not a “reciprocating country” to India as per the Provisions of Section 44 A of

the Code of Civil Procedure, 1908. ( It's not in the list given in sec. 44A of CPC)

Reciprocating and non reciprocating territories of India

The Indian Legal System categorizes Foreign Judgments and Awards from all the quarters of the
world into two groups, Viz. (a) Judgments and Awards coming from the ‘Reciprocating
Territories’ of India and (b) Judgments and awards coming from the ‘Non-Reciprocating
Territories’ of India.

Enforceability of Judgments from the non-reciprocating territories of India.

For enforcing a foreign Judgment or an Award from a ‘Non-Reciprocating Territory’ of India, a

fresh suit in an Indian Court with appropriate jurisdiction needs to be instituted. Further,
Judgments from a ‘Non-Reciprocating Territory’ only have evidentiary and persuasive value in
the eyes of India Judiciary and they must be filed for enforcement within three years from the
day when they were originally passed. No doubt that Foreign Judgments from Non-
Reciprocating Territories need to pass through the sieve of the Indian Judiciary, but the sieve
used is broad and spacious enough to allow the sink in of "the cause of Justice" upheld by the
courts of Foreign Countries.

Divorce decree granted by Foreign Courts can be divided into two categories:

1. Mutual consent divorce granted by Foreign Courts.

2. Decree granted in Contested Divorce.

In the case of mutual consent divorce decree, the decree granted by a Foreign Court is
considered to be legal, valid and binding in the Indian Courts by the virtue of Section 13 and
Section 14 of the Civil Procedure Code, wherein Section 13 enumerates the condition when a
foreign judgment would not be considered valid in India and Section 14 states that when the
Indian Courts would consider the Foreign judgment to be conclusive. A decree which is not
affected by section 13 does not need to be validated in India and will be considered conclusive
under Section 14 of the Civil Procedure Act.

Note :

1. When an ex-parte decree is passed by a Foreign Court, it would not be valid and conclusive
in India.

2. Divorce is obtained on grounds other than the grounds enumerated under the Hindu
Marriage Act if the parties were married under Hindu Law, as a divorce matter is governed by
the law under which one gets married and not the law of the land where the party is residing.

3. It is a general rule that if one of the partners contests divorce filed in Foreign Land it would
be said that he/she consented to the jurisdiction of that Court, in such a case the decree would be
considered to be a conclusive one.

4. Where the wife consents to the grant of relief by the foreign Court although the jurisdiction
of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the
parties, to be valid and the judgment of such foreign Court to be conclusive.

As per the latest Supreme Court judgment which held that a decree of divorce granted by a
foreign court is not valid in India if the ground is not recognised by Indian law.

EXECUTION OF FOREIGN DECREE from a FOREIGN COURT

Under the Indian law there are two ways of getting foreign judgment enforced.

1. First, by filing an Execution Petition under Section 44A of the CPC (in case the
conditions specified therein are fulfilled).
 2. Secondly by filing a suit upon foreign judgment / decree.

A foreign judgment in India can be enforced in the following ways:

● Decree from Courts in "reciprocating territories" can be enforced directly by filing before
an Indian Court an Execution Decree.
● Judgments from "non-reciprocating territories," such as the United States, AUSTRALIA,
and GERMANY can be enforced only by filing a lawsuit in an Indian Court for a
Judgment based on the foreign judgment. Foreign judgment is considered evidentiary. -
The time limit to file such a lawsuit in India is within three years of the foreign judgment.

Execution of foreign Decrees by reciprocating territories in India is governed by section 44A,

CPC. The said section explains the execution of any decree passed by a reciprocating territory,
i.e. any country or territory outside India which is declared to be reciprocating territory by the
central government.

Enforceability of Judgments from the non-reciprocating territories of India.

(Australia being a Non- reciprocating territory)

For enforcing a foreign Judgment or an Award from a ‘Non-Reciprocating Territory’ of India, a

fresh suit in an Indian Court with appropriate jurisdiction needs to be instituted. Further,
Judgments from a ‘Non-Reciprocating Territory’ only have evidentiary and persuasive value in
the eyes of India Judiciary and they must be filed for enforcement within three years from the
day when they were originally passed. No doubt that Foreign Judgments from Non-
Reciprocating Territories need to pass through the sieve of the Indian Judiciary, but the sieve
used is broad and spacious enough to allow the sink in of ‘the cause of Justice’ upheld by the
courts of Foreign Countries.

So, to answer this very question briefly:-

No, even if the Australian court nullifies the marriage or grants a divorce, the decree will not be
enforceable in India. This is because Australia is not considered a reciprocating territory under
Section 44A of the Code of Civil Procedure, 1908. Therefore, to enforce a foreign judgment or
decree from a non-reciprocating territory like Australia, a fresh suit must be filed in an Indian
court.
Such judgments from non-reciprocating territories only hold evidentiary and persuasive value in
Indian judiciary, and they must be filed for enforcement within three years from the date of
their original issuance.