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    What should one do when the separating parties are in two different countries?
    Posted: 2012-09-06 05:00:25

    Separation is difficult when both husband and wife are in the same country. When they are in different countries, the challenge to resolve the differences becomes even greater.

    Take for example a situation where the girl is fromCanadaand the boy fromIndiaand they get married by arranged marriage which is still common inIndia. Both speak the same language, Gujarati, Hindi or Punjabi and the age, religion, colour and caste are all compatible.

    The marriage was meant to be made in heaven but it turns sour after the parties live together, usually inCanada, for a while. The traditional culture ofIndiawould expect the wife to be at home, but if she is inCanada, it is very likely that she would work. Who then does the cooking and cleaning and looking after the children and how far should the husband help becomes the big question. The conflict can escalate when the in laws are near the spouses and the husband is likely to be influenced by his parents.

    Indian families live in a joint family system where the roles of the individuals are defined and carried out according to the customs. InCanadathe decisions in the family are based more on the nuclear family concept where the husband and wife make their decisions alone. When the parties move toCanadathe changes in culture begin to take place, which can be fast or slow depending on the person and their educational and social background. When the changes happen with both spouses simultaneously there is less discord. When the in-laws influence the spouses or where expectations of the parties are no longer in synchronisation, problems begin to emerge and separation can happen. Where these problems cant be reconciled there is a separation or divorce with the attendant questions of support, custody and division of the assets.

    Where spouses separate the question is in which country do you begin for the resolution of the problems? If the husband is in one country and the wife in another country laws of which country apply ? There are not too many lawyers either in Canada or India who are versed with the two legal systems and the conflicts of laws issues. The legal actions are costly in any country, but dealing with two countries makes it even more expensive and difficult.

    Broadly speaking the rights of women are better protected in the Canadian jurisdictions because the spousal support does not require a determination of the question of whether the wife left the husband. The Old Deserted Wives and Children’s Maintenance Act no longer applies. In Indian law the wife will have difficulty looking for support when it is argued that she has left the family. With respect to division of family assets again the Canadian jurisdictions will permit equal division of the family property under the net family property concept, whereas inIndiathe property issues will be governed by the Hindu or Muslim Law. Muslim Law, for example, does not recognize equality of property for the male and female persons.

    Further, the support payments would be generally higher inCanadabased on support guidelines, the support orders inCanadaare in Dollar amounts. In the Indian jurisdiction the support amounts would be in Rupees. By today’s exchange rate it takes 38 Rupees to buy a Canadian Dollar. Where the wife is looking for support she would be better off commencing the action inCanada. If the action has not been commenced there is some tactical advantage in starting an action in the jurisdiction in which you reside. The other party is forced to retain a lawyer in that jurisdiction and retaining a lawyer long distance can be a problem, since you cannot give the lawyer detailed instructions and he does not have the full opportunity to explain the legal steps in the local jurisdiction. The costs of the lawyer can also go up.

    Where one of the parties have commenced an action, let us say inIndia, it is possible for the other spouse in Canada to commence another action in Canada, and then bring a motion in theIndian Courtand claim that the issues would be better decided in the Canadian Court. If you succeed there would be a stay of proceedings in theIndian Court. The principle used by the courts for deciding which is a better jurisdiction is the ‘forum convenience’ which is forum which would be best suited to deal with the matter. The primary question in such a dispute is where did the parties reside and intend to reside. The personal law of the parties is the law of the country where they intended to reside in the long run. The law of that country then becomes the law pursuant to which the decisions are made on the division of property and support. Other factors also include the question of where the parties got married and what nationality they have and where the witnesses are.

    The Canadian courts are more likely to deal with the matter expeditiously than Indian courts. Delays are common in Indian courts and a wife looking for support in the Indian court can be very frustrated with the adjournments which are easily granted by the Indian courts.

    A better solution for all parties is to have a mediator with the knowledge of both jurisdictions. The advantage of mediation is that the court rules and procedures do not apply and communications become easier without the application of the rules of practice of each country and the timelines dictated in each country. The mediation can be done long distance but may take longer because of distances. An important step to be achieved by the two parties is the consent of both parties to appoint a mediator who is acceptable to both. The mediator would look to resolve the issues of custody of the child, support and the division of the property through phone or on email or even on messenger system (Yahoo orMSN). The mediated resolution can be reviewed by the lawyer advising each party in their respective jurisdiction. A Separation Agreement would then be prepared based on the agreement reached and it can then be signed by the parties in two respective countries separately. It would be important to have the agreement confirm to both the jurisdictions to ensure its enforceability in either jurisdiction. The completion of the agreement resolves the issues and puts the mind of the two persons are at ease knowing the future, and the only thing required to be followed up is the formal divorce which can be done in either jurisdiction. The correct jurisdiction to seek divorce is the where the applicant intends to reside. If the divorce is obtained inIndiaan opinion of anOntariosolicitor is needed to confirm that pursuant to the conflicts of laws the Indian Divorce would be recognized inCanada.

    Without that opinion the party cannot re-marry inCanadaand it would be bigamy to be married without that opinion. The registrar or marriages would insist on that opinion when you apply for he marriage registration.

    Divorce granted by a court in one jurisdiction is recognized by the courts of the other jurisdiction if the court granting the decree of divorce has assumed jurisdiction properly based on the connection of the local party to that country. It is called the law of domicile. They could would look to see what the connections of that person is to the local jurisdiction, and it can be illustrated by bank accounts, presence of relatives, jobs, house, place of marriage, citizenship and other connections to the country.

    The migration of greater numbers of the Indians toCanadain the recent years has increased the need for understanding of the laws of the two countries. The migration also brings with it the changes in cultures and cultural changes create the clash where parties do not adjust and separation can result. There is a need to address these issues.

    Mr. Jay Chauhan has more than 30 years of experience practicing Commercial law, Family law, Immigration law, Wills and Estates, and Litigation. Mr. Jay Chauhan earned degrees, including a Bachelor of Science from the London School of Economics in England; a Barrister-at-Law at Lincoln's Inn in England; a Master of Economics at the Berlin University in Germany; and a Bachelor of Laws at Osgoode Hall in Ontario, Canada. He was called to the Bar in Ontario in 1972, England in 1965, and admitted as an Advocate in the State of Gujarat, India in 1982. You can learn more about Mr. Chauhan by visiting his website at
    or reading his bio.

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