Validity of Foreign divorce decree in India.
When Foreign Judgments not Conclusive.
Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.
In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child’s housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.
When Your Foreign Divorce Decree is Valid in India.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction.
(b) where it has not been given on the merits of the case.
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
(d) where the proceedings in which the judgment was obtained are opposed to natural justice.
(e) where it has been obtained by fraud.
(f) where it sustains a claim founded on a breach of any law in force in India.
So these six conditions are fulfilled by such foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments. The very first condition is with regard to Jurisdiction of such foreign court, what it means that both or either of the parties should be residing in the foreign country where from such decree of divorce has been obtained. The second important condition is with regard to merits of the case for divorce, whether those merits considered by the foreign court to arrive on this conclusion or not. Next, a proper notice was served to the other party with regard to such divorce proceedings & the other party was assigned a sufficient time to file his or her defense against the case, hence following the principle of natural justice. There was no fraud or force involved in such case & both the parties either mutually agreed to surrender itself to such foreign court for getting the decree of divorce or neither of them objected to such foreign court proceeding with such matter & deciding it accordingly. Lastly the decree so passed by the foreign court should not be such which may not be executable in India. In your case if you both had agreed for going through such divorce in Spain through their Family Court having similar status as Indian Family Court, such decree of divorce was passed after considering all the merits of your case, both the parties were heard & their statements properly recorded by the foreign court & a proper judgment followed by the decree passed by such foreign court dissolving your marriage, then this will be a valid dissolution of marriage & the decree of divorce executable in India. Now should you get this decree of divorce declared as valid by the family court of India or not. It all depends on you or on the precondition as mentioned in such decree of divorce by the foreign court. Some foreign courts do put a condition in the decree to any such matter to become valid only after the Indian court or competent government authority gives its ascent of approval on such decree. In such a case you have to file an application in the Family court of competent jurisdiction as discussed above in India to get the approval & validation of such decree of divorce. Otherwise it is entirely on both of you to go in for Indian court validating such foreign divorce decree or not, for all purpose you both can proceed for second marriage if such foreign divorce decree was obtained keeping in mind all the prerequisite conditions as mentioned in section13 of the CPC. Try using the Foreign Family Court divorce decree for both these purposes if the Indian government/authorities don’t agree then get this decree validated by Indian.