Updated: Feb 26
At ZMK Lawyers we represent a large number of clients who are either of Indian Origin or have some connection with India.
We often work with Advocates from all across India for our clients who require India related services.
Some of the most common areas in which NRI (Non-Resident-Indian) require India related legal services are -
Drafting Power of Attorney to Dispose Property in India
Will & Probate
Discovery work for Litigation
Criminal Law Matters
Commercial and Transactional Services
Since both Australia and India are Commonwealth countries, both of them have similarity in legal systems.
Although there are some areas in which there is clash of conflict of laws between two countries.
Hindu Marriage Act 1955
One of the example is in Family Law. In Family Law if the parties have married in India as per Hindu Marriage Act 1955 and later moved to Australia and acquired Australian long term residency, permanent residency or citizenship then the topic of debate is which forum is correct to initiate legal proceedings - India or Australia ?
The answer to this is fairly complex and differs on case by case basis, there is also conflict of law between two countries, as per Hindu Marriage Act 1955, for dissolution of marriage in India the parties need to establish a fault element and the parenting and property matters are dealt together. It can also be a time-consuming process if the parties initiate proceedings in India.
Divorce in Australia
In Australia the Federal Circuit Court of Australia deals with Divorce matters. The courts in Australia adopt an objective approach for Divorce and the issues of fault elements are not raised. If the parties or one of the party to the marriage chooses not to live together then a practical approach is taken for the Divorce order to be settled without complexity.
The property and parenting matters are dealt separately to Divorce.
The important things the court see is -
It has been 1 years since the date of Marriage
The parties regard Australia as their home
It’s been 2 years from the date of Marriage
There are proper arrangements for children
Once the parties to the Divorce have complied with the requirements then in most cases it can take approximately 2 to 4 months for the Divorce order to be granted.
The property and parenting matters are dealt separately and they can sometimes be fairly complex than Divorce.
In some cases there are court decisions in India which say that a decree order obtained from an overseas court is recognized in India even if the parties were married under the Hindu Marriage Act 1955.
There is still lot of confusion on this topic and it often leads to an unsettled ongoing dispute which causes unnecessary stress to the parties to the marriage who are already going through crisis in their life.
There is still lot of development that is needed in such areas. At this stage it is up to the legal practitioner from both countries to work together to develop guidelines so the parties can resolve the matter amicably.
At times it may be best to work with each other when such issues of conflict of laws arises.
There is a plenty of unexplored potential for legal practitioner from both the countries to work together in several areas of law. This topic will be covered in the different post.
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ZMK Lawyers legal blog, “tweets” and monthly legal articles is not legal advice. You should not act upon this information without seeking advice from a lawyer/solicitor.