Marriages may be made in heaven, but divorces are finalised in courts, and here the angels are none other than the lawyers in black (robes). Sunday MiD DAY spoke to a few Family Court lawyers to learn how they deal with the complex and messy issues of divorce, to win favourable results.

Pointing out how different regular court cases are in comparison with those that deal with divorces, well-known advocate Mrunalini Deshmukh said, "In courts, documentary evidence is everything. But in matrimonial disputes, it is often one person's word against the other. There are almost never any witnesses within the four walls of a family's home, and keeping a record of events, whether it's police complaints, bank or credit card statements, is crucial."

Hold your horses
In the case of Meena Kumar, who wanted to separate from her husband of three years, but whose husband was unwilling to agree, she made the mistake of posting her photographs and personal details on a matrimonial website, thinking she would soon get a verdict in her favour. The lawyer who was representing her husband's case said, "What she didn't count on was that I was trawling the Internet to find some dirt on her." According to the lawyer, who requested anonymity, he successfully used this bit of information in court to prove that she was mentally torturing her husband.

Build your case
According to another lawyer who specialises in divorce cases, and who refused to be named, he once had to ask a client who wanted a divorce to continue living with an abusive husband and build a strong case against him. "When Dipali Chandra approached me telling me she wanted to separate from her husband, I asked her to bear with the abuses for some more time. She had never registered a single police complaint, and only her immediate family was aware of her ordeal. To build the evidence required for a divorce, I advised her to lodge non-cognizable offences against her husband with the local police station. By the time she filed for divorce, there was plenty of evidence to show Sameer's cruelty," he said.

How to ensure maintenance
Another important aspect of divorce proceedings is the quantum of maintenance to be paid to either spouse. Often individuals hide their source of income or their jobs, so as to pay very little maintenance, if nothing at all. According to Deshmukh, "Lawyers often summon Income Tax officers as witnesses to testify what income the other party has." Others deliberately address court summons to work addresses, knowing that the counterfoil of the mail will indicate that the person holds a job.

According to advocate Flavia Agnes, who is the director of Majlis, an NGO for women's rights, "Apart from income, we look at the husband's lifestyle; what kind of car he drives, air tickets of his trips abroad and so on. If for example, a husband is the proprietor of a shop but claims to be only an employee, we take photographs of his shop's boards, which say he is the proprietor."

If you can't win it, delay it
And in case a favourable result is not likely, advocates often try to delay the ruling. According to one advocate who represented a wife who was likely to win a divorce case, her husband's lawyer filed another application under the same provision in another court, thereby delaying the judgement for a few days. According to a provision under the Civil Procedure Code, trial of a suit is not permitted if there is already a similar suit pending elsewhere between the same parties. "We were awaiting a final judgement after years of litigation. The advocate not only filed such an application, he even asked the judge to refrain from dictating the judgment."

According to another lawyer, another common tactic used by advocates is to read an application as slowly as possible. "They will read haltingly from their applications. rather than argue their case. When it's the other side's turn to counter, there's never enough time left," he said.

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Fathers matter, and the law now recognises this. The government is rewriting the law so that children will have a legal right to  see their father, even when their parents have split up. Fathers' rights campaigners will hail this as a victory for fathers – but in fact, it's a victory for children.

One in three children grow up without a father. In some cases, this is because the father bolted, or is behind bars. But in many cases it is because mother banned him after an acrimonious divorce. This could be because he was a child abuser, or a wife-batterer – or because his drinking makes him dangerous. But often it is down to mother's anger. I pray that if ever my husband and I were to break up I would prove saintly and wise, and let him see the children. I hope that, in the midst of my fury and hatred, I would be able to put the children's interests above mine. But I can't swear that I'd be any different from the hundreds of thousands of women who each year go to the family court to wrangle with their former spouse over his access to the kids. (Some don't even do that: they accept in principle his right to see the children, but in practice place obstacles to any visit.)

Usually, the less state intervention in the family the better. As I wrote earlier this week, I don't want to always look over my shoulders, fearful lest social services grab my child if I spank her bottom or shout at her father. But there are instances, divorce chief among them, when a family's behaviour has such huge consequences for those outside it that the state must step in. A child brought up by only one parent is more likely to abuse drugs, drop out of school, fail to hold down a job, or end up in jail. That's bad news for the family, but also for the rest of us.

Divorce is ugly, and its scars long-lasting. As the child of divorced parents, it took me until I was in my 40s to overcome my phobia of marriage: I knew all too well the pain of break-up. But if children continue to have access to both parents – even if this has to be legally enforced – they have a chance of surviving the emotional upheaval. The government finally agrees.

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A divorce can be traumatic to the ex-couple, but it can be even harder for the children. Tons of reasons can be attributed to come up with a decision to part ways for the couples. When a couple decides to have a divorce, what they truly consider is their own self. Secondary consideration will be their children. Children and divorce are two things that are very hard to resolve.

Divorce is often a very ugly topic. It is never easy for children. So if you are thinking about getting one, you have to put in mind that children and divorce is something that you need to discern on.

Things to consider before getting a divorce
Children and divorce are interrelated. Each has an effect on the other. When deciding on getting a divorce you think about your children and when you get a divorce it would affect your children big time. If your relationship is already on the rocks, think first of your children and divorce last.

Don’t think that it is easy for children if you get divorce. It is never easy for one to accept that your parents[Divorced parenting] are never going to be together again. Some go into drugs, others become a loner, and some children would act like nothing happens but when things get ugly, they break down into pieces, and other children even commit suicide.

It is always important to think of divorce and its effects on children before deciding on getting one. You have to give up one in order to get one.

How to help children cope with parent’s divorce?

Children and divorce should be dealt individually. There are millions of suffering children and divorce is the reason for that. The effects of it on children and your family are always not good. Make sure that you are there for your children during these hard times even if you yourself are also healing.

There are certain institutions that will help children to cope up with the divorce of their parents. Changes in children’s behavior may manifest. If they are older kids, they might neglect their studies. Some would turn to their friends for comfort.

It is a blessing if children have good friends. They may act as their social support amidst the trial that the children are going through but sometimes their set of friends that they have are on the other side of the fence. Children are easier to influence to do or imitate bad habits.

It is also important for the parents to explain to the kids the reason behind the divorce. You may skip other sensitive details, the important thing is you give them justifications for the decision that you came up.

Parents should not leave their children from speculating the reasons behind the decision. An assurance that you are still committed parents to your children will somehow ease the stress that they are undergoing as well.

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The chroniclers of the cream of British society since the late 1700s have put together a book on how to behave during a divorce. The idea is to assist emotionally distraught couples in maintaining decorum in the midst of their battles over custody and cash.

Debrett's has teamed up with divorce lawyers Mishcon de Reya, who represented the late Princess Diana, for the publication. The Debrett's Guide to Civilised Separation provides tips on how to break the news to friends and colleagues and information on the process of divorce.

"Throwing your husband's vintage wine collection down the loo or cutting his suits to shreds might seem like a therapeutic gesture when you're in the throes of rage and despair, but it can rebound on you and undermine your case," the book advises.

It also warns about becoming a "divorce bore" as you risk being "struck off the dinner-party guest list". In keeping with its focus on good manners, the guide says that being "relentlessly polite and civilised" will "defuse any fall-out" from the split. The book advises "friendly Christmas cards" to the in-laws and estranged friends and urges people to take a "minder" to events attended by the ex.  The minder is to monitor their "behaviour, alcohol intake and emotions".

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The inability to have meaningful telephone contact with their children can be a significant source of frustration and stress for separated and divorced parents. In fact, trouble with telephone contact occurs surprisingly often. Some of the common complaints sound like this:

No one returns my calls.
The other parent hovers over our child during telephone conversations with me.
They have caller ID and the children are not allowed to pick up the phone if they see my number.
When I am able to get through, I am told that they are “busy” or they will have to call me back, and they never do.
I leave messages for my child but she tells me that they are never given to her
My child is very quiet and “non-conversational” when her dad is in the room.
My children and I have no privacy during phone calls.
The court order says that I am supposed to have reasonable, liberal, and regular phone contact, and I am not getting it.
When I call to speak to my children, my ex always gets on the line and starts an argument.
I feel like I have to go through gatekeepers just to be able to speak to my children.
I should be allowed to talk to my children at least once a day.
I can always hear my ex in the background, bad-mouthing me and interrupting my phone call.
My ex is doing this just to annoy me.
In many cases, the real issue is not about one’s inability to speak with the children or the loss to the children of such brief telephone conversations, but something much more complex. This something must be put into proper perspective in order to avoid a constant and nagging reminder of the unnecessary parental conflict that can linger on and adversely affect each parent’s relationship with their children. In attempting to deal with these types of issues, it is helpful to ask a key question of yourself before choosing what course of action to take: Is the issue really about the benefit of telephone contact or is it a test of wills between me and my ex? This is a key question, and it can be asked of any dispute. When you find yourself continually fighting about the same thing, ask yourself whether you’re really fighting for the benefit of the children or whether you’re trying to exercise power or control over the other parent.

Here are a few key reminders and suggestions.

Generally speaking, children do not have a lot to say when they are on the telephone with adults no matter where they live or who they are with.

When you do speak to your children by phone, keep the conversation short and sweet.

Do not ask your child to relay any message to the other parent. If you are intending to speak to the other parent, you should not do so in the same telephone conversation. Make a separate telephone call or appointment to discuss parental issues when the children are not within earshot.

Do not put the responsibility on the children to call you. Period. Let them be children.

In some cases it may be appropriate to purchase a cell phone for your children. There are special phones that allow only for pre-programmed incoming and outgoing phone calls, which the parents can set. Perhaps a separate house line would be a worthwhile option to consider.

Explore other means of communication, such as e-mail, text messaging, video cam, and so forth. Family blogs or websites may also help promote parent-child communication and interaction.

Do not do unto the other parent as that parent does to you. By this benevolent ideal, I mean that even if your efforts are intentionally frustrated by the other parent when you try to speak to your children by telephone, do not respond in kind.

When your children are with you, you should arrange for them to call the other parent at reasonable intervals. Be considerate; leave the room and give them privacy. And, do not inquire about their conversation. Teach your children that you are not attempting to frustrate communication with their other parent and that you will not interrogate them on such matters.

If your telephone efforts are being thwarted, you need to let it go, or at least put it into perspective and realize that the children will be okay if they do not hear from you for a few days and vice versa. Telephone contact issues are generally blown out of proportion.

The best way to combat telephone communication issues is for both parents to recognize that telephone contact is generally a good thing if it is conducted in a proper fashion.

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January is always seen as a bleak month, and it is no surprise that it usually comes with a surge in divorces. Steven Meredith, pensions specialist at NFU Mutual, said: “For many married couples, the most valuable asset is their pensions. “Not every divorce will end in a pension being shared but, particularly for those approaching retirement age, it is a large sum of money and splitting the pension pot could significantly alter both partners’ retirements.”

Research from Buck Consultants shows there could be 31,000 public sector workers filing for divorce who face uncertainty in the value of their pensions because reforms to their schemes have not yet been decided.

A year of paralysis
There has been uncertainty surrounding public sector pension valuations for several months, Mike Morrison, head of pensions development at Axa Wealth, said.

“Public sector pension members looking to divorce have had their valuations in a state of paralysis since March because of the government’s wrangling over changing the indexation of their pensions from RPI to CPI,” Morrison said. New guidelines on valuing public sector pensions using CPI inflation were finally published in October 2011. However, though indexation is now set, the question of how public sector pension benefits will accrue in future is still unanswered due to continuing negotiations between the government and the unions.

The legal position
Jennie Kreser, pensions partner at Silverman Sherliker, said it is unlikely that, if the valuation of a pension turned out to be less than its true value after the divorce, an ex-spouse could come back and demand a bigger settlement. However, Kreser said with no definitive guidelines on how to value public sector pots in light of the future reforms, it would be very difficult to calculate how much a lump sum payment or a split in income to a divorcing partner should be in the first place.

Advisory approaches
Advising clients during a divorce requires sensitivity, Morrison said. It might be more economically expedient for the partner who is the pension scheme member to wait until the reforms are finalised. However the emotional strain of the situation might make it inappropriate for an adviser to recommend a delay, he added.

Kreser said the divorce proceedings can at least be started without a final valuation of the pension pot.
“A divorce happens in two stages: Decree Nisi and Decree Absolute,” she explained. Decree Nisi states the intention of the couple to divorce at a future date provided no contradiction to the grounds for divorce has been produced. Decree Absolute finalises the divorce, so, Kreser said, couples could sign Decree Nisi to “get the ball rolling” before their assets are split.

This could help to placate distressed clients unhappy with a delay, she said. However, Morrison said the safest move for an IFA is to base recommendations on hard facts as predictions could be wrong.
“You could argue it would be better for some couples to delay a divorce but, with gilt yields at a record low, transfer values now could be higher than in future,” he said. “An adviser can only advise on the present state of legislation; the only thing set in legislation.”

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Sweet & Maxwell, the legal publisher, says there was an 11 per cent rise in the number of pension-sharing orders made by courts in the past year alone. In total, more than one in 10 financial settlements ordered by judges after spouses split up now includes an arrangement to divide their main earner's pension pot, a decade after the orders were introduced.

Experts say the rise could be down to the fact that, following the recession, the retirement fund of the main breadwinner could be a household’s biggest asset, with cash in short supply and houses worth less money. In addition more couples are splitting up in their fifties, when they are likely to have built up bigger pension pots. But it means one spouse could have less money to live on in old age than they had been expecting.

It comes after official figures showed that the number of divorces in England and Wales rose in 2010 for the first time in almost a decade, with commentators suggesting the recent recession could have put partnerships under greater strain.

James Stewart, a partner in the family law firm Manches and a Sweet & Maxwell author, said: “The global financial crisis has led to a situation where fewer couples are able to achieve a clean break award, where capital and maintenance claims are both dismissed.

“Liquidity is now a serious issue in many cases. Homes can be difficult to sell and business interests are often difficult to realise, so fewer people have the funds available for a cash settlement. “As a result, lawyers are looking much more closely at pensions, and in my experience, the number of pension sharing-orders has increased markedly over the course of these past two years.”“Given that more and more people are divorcing within a decade or so of their retirement, they will find it difficult to save enough to enjoy the same sort of lifestyle as singles that they were anticipating as a married couple.”

Under a law that came into effect in December 2000, spouses were for the first time entitled to half of the main earner’s occupational - not state - pension on divorce when courts divided their assets. In most cases, the pot is split into two new funds at the time of divorce to achieve a clean break. These pension-sharing orders were seen as improvement on earlier schemes where retirement funds could be offset against other assets at the time of the divorce, or where one spouse could receive a share of the other’s pension when they retired.

Sweet & Maxwell said the total number of ancillary relief cases – financial settlements decided in courts following divorce – rose by 3 per cent in 2010 to reach 82,290. Of there, 10,205 involved pension-sharing orders, up from 9,218 in 2009. There was also a 5 per cent rise in property adjustment orders, in which property and other non-cash assets are transferred from one partner to the other. By contrast, the number of orders relating to lump sums rose by just 1 per cent. The firm expects a further rise in pension-sharing orders when figures for 2011 emerge, following the recent increase in divorce cases.

As more older couples divorce, pension funds are increasingly likely to be the biggest source of wealth to be divided. The average age at divorce has risen by almost seven years in recent decades, to reach 44.2 years old for men and 41.7 for women.

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It is the divorce that has been poorly handled by the parents, rather than the divorce in itself, that could lead to additional behavioural problems in the child - a researcher has claimed.

"It is not divorce in itself that can lead to problems in children. It is the divorce linked to interparental conflict, a lack of co-parenting, an unsuitable family climate, etc.," said Priscila Comino, a researcher at the University of the Basque Country's (UPV/EHU) Faculty of Psychology.

Comino has gathered data on 416 children between the ages of 4 and 18 to study and compare the behaviour of the offspring of divorced parents (214) with that of the offspring of married parents (202).

The results show that there is no reason why the problems of a child of divorced parents should go beyond those that a child of married parents could have, as long as the parents have adapted positively to their new situation. The study involves a series of questionnaires filled in by the parents, so the children are kept on the sidelines.

"They were asked to provide details of a socio-demographic type. Then the divorced parents were given the questionnaire dealing with the adaptation to divorce or separation, and both the divorced and married parents were given the test relating to the children," explained Comino. According to the results obtained in the thesis, there are however differences in the average psychological well-being of the offspring of divorced and married parents, being more favourable in the case of the latter.

But despite that, the children of divorced parents mostly emerge as well-adjusted emotionally. The results further indicted that divorce is in fact only a problem when it is associated with other risk factors, like: interparental conflict, inadequate co-parenting, changes in the child's daily routines or psychological problems of the parents themselves.

"If the parents have adapted positively to the divorce (this adaptation being understood as the encouraging of a positive context, an adequate co-parenting relationship and fewer problems of the parents themselves), the offspring are not going to have any more behavioural problems than those of the offspring of married parents," said Comino.

"The confirmation of this relationship between the parents' adaptation and the adjustment of the offspring is essential with a view to working with the parents and achieving benefits, in them themselves and in their offspring," she concluded.

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Irwin Cotler responds to the Justice Minister’s comments last week about the laws governing same-sex marriage.

While it is true that there exists a Canadian residency requirement of one year before a couple may divorce here, this requirement applies to all marriages — homosexual and heterosexual — and existed long before same-sex marriage was adopted in this country. Indeed, this provision is from the 1985 Divorce Act introduced by the Conservative government of Brian Mulroney. Certainly, if this provision needed fixing so urgently as a result of same-sex marriage, the Conservatives have had ample opportunity to do so since their assent to power in 2006.

While it appears that the couple in this particular court case — comprised of one partner from the UK and the other from Florida — may not meet this requirement, the government could have rested its case here. Instead, the government went a step further and deserves to be called out on its approach — it is one thing to say this couple cannot divorce because the residency requirement has not been met; it is an entirely different contention — and an offensive if not discriminatory one — to assert that the couple was never married in the first place. This is to turn fact and law on its head, while in the process undermining equality for gays and lesbians.

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In a significant judgment, the Gujarat High Court has ruled that a divorced woman cannot claim a government job on compassionate ground as an “unmarried” daughter following the death of her father.

A division bench of Justices A L Dave and C L Soni pronounced a judgment in this regard recently while deciding the petition of one Nirmala Solanki, who had demanded an appointment on compassionate ground following the death of her father who was with the Gujarat Police.

Rejecting the petition of Nirmala, a divorcee, the court while referring to the state government’s scheme of giving compassionate appointment held that the two categories — unmarried and divorcee — cannot be equated with each other nor can they be merged with each other.

According to the facts of Nirmala’s case, she got married on May 26, 2009. However, following some matrimonial disputes, she started living with her father from April 10, 2010. Meanwhile, on June 9, 2010, Nirmala’s father died. Subsequently, she got divorce on August 15, 2010.

Two days later, on August 17, she made an application to the state authorities for appointment on compassionate ground due to the death of her father. But the government rejected the application.

Nirmala later challenged this decision at the HC and a single-judge bench dismissed the same. She then filed an appeal against this before a division bench. Referring to the government’s scheme for compassionate appointment, her counsel had argued that for all practical purposes, Nirmala was and had to be treated as unmarried daughter.

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