NOTICE TO READER
The answer to each question below is a brief summary for informational purposes only and is only applicable in the Province of Ontario. It is not meant to be legal advice. If you require information or advice as it relates to your individual circumstances you are advised to consult with your own lawyer or retain the legal services of Veena Pohani.
Obtaining an uncontested divorce when the spouse resides in India
I have a large South Asian family law practice which I’m very proud of and have worked hard to maintain.Many people come to me every year wanting a divorce when their spouse resides in India. This presents as a problem for two reasons: this explanation.
- The spouse has to be served personally with a Divorce Application unless you get an order that falls within an exception;
- The spouse residing in India has to be served using the Central Authority for Service Hague Convention for Service.
Personal service is always challenging because you have to find the other spouse for service. However, if the spouse is in India this is even more challenging because now you have to serve the other spouse using the Hague Convention for Service.
India falls into a particular category of countries where the Hague Convention must be used.
The Hague Convention for Service are backlogged in a big way and appear to be understaffed. Once legal documents are forwarded to the Hague Convention, they have 6 months to return a Certificate of service on the residential spouse in India. Unfortunately, this doesn’t always work smoothly as there are usually delays and problems with receiving a Certificate.
When a person starts a Divorce process there is an expectation that they will get the divorce reasonably soon so they can move on with their lives. This is very hard to predict when the spouse resides in India.
When there has been a huge delay in getting the certificate of service from the Hague Convention, I have been successful in bringing a motion to court to validate service on the spouse in India and grant a divorce at the same time. This was the first motion of this sort in Ontario, and I have been successful with this creative motion every time I’ve gone to Court.
If you are in need of a Divorce and your spouse resides in India, please contact me for further assistance on this issue.