Sunday, February 10, 2008

Divorce laws poles apart

I have always wondered why some of the laws are poles apart, on opposite ends of the planet. Below, are some differences in divorce laws between the US and India, to highlight the point (I am not a lawyer, and you should not take any of this as legal advice).

1) Sizing: One size doesn't fit all, so how do they divide the population? In the US, each state defines the divorce law, so that makes it 50 different possibilities. In India, it is based on religion, which is roughly 85% hindu, 10% muslim, 5% christian. Both make sense, since in the US, the culture is predominantly "American", and what matters is the states are either conservative or liberal to a certain degree. In India, the culture was distinctly based on religion when the founding fathers drafted the constitution, so they defined the family law based on the religion - else, they'd have tried to fit a square peg in a round hole.

2) Grounds: In the US, most states allow a "No Fault" divorce, meaning one spouse can file a peitition and get a divorce decree, usually after 6-12 month waiting period. California voters first approved no fault law in 1970, and other states followed suit over time (except New York). Prior to that, courts were going nuts trying to break their head on who's at fault. The idea was allow adults to make the choice, and even if one spouse doesn't want to cooperate, the marriage is broken.
In India, either the parties agree mutually, or some fault must be proven (desertion, cruelty, cheating etc.). Muslim husbands are however allowed "No Fault" divorce! This makes the justification not so easy. Why doesn't a muslim woman not get the benefit of "no-fault" divorce? Why christians have to prove two faults to get a divorce (courts recently ruled over this)? The law is based on religion, and thus hardly updated to suit current socio-economic environment. Courts get innovative, but lawmakers don't want to deal with a hot potato that involves religion, unless the voters feel strongly - that still seems a stretch.

3) Support: The non-earning spouse is an extra mouth to feed. However, the state doesn't want to pay, nor do the relatives around. Who is forced to pick up the tab? And for how long? In the US, the higher earning spouse pays "spousal support", an amount based on difference in income levels, taxes, child support etc, regardless of who's at fault, and regardless of gender. The time limit guideline is half the duration of the marriage (e.g., if the marriage lasted 6 years, payment for 3 years). The idea is to provide a leash to the lower earning spouse to be able to move on, while not penalizing the earning spouse life-long, even for even a short marriage. In India, the law is written gender specific - husband pays the wife, and time limit is open, until the wife remarries or is able to sustain on her own. Lately, the laws were changed to increase the alimony limit based on income formula as opposed to a fixed paltry amount, but the time limit was still left open. Also, in the case of muslims, the Wakf board provides some support to the woman for a limited time. Thus, it is lot more unpredictable, though courts try to settle by coming up with an acceptable lump sum settlement.

4) Property: Who takes the bank account? Who gets to keep the home? In the US, property settlement can be separated from issue of dissolution, and has no bearing on who's at fault. Thus, it may be possible to get a divorce decree without fully settling support or property issues. Assets and debts acquired during the marriage are considered "community property", and are divided "equitably", generally 50-50, though not an exact split. Any property held before marriage or after separation belong to the original owner. In India, "conjugal rights" are determined based on who's at fault - meaning property rights, not the right to sleep on the same bed! Thus dissolution issue is not separated from property or support issues. Sometimes threats to use stringent dowry laws are used by an angry wife (or should we say smart?) to bring about a favorable lump-sum settlement, without regard to what assets or debts were obtained during the marriage.

5) Child Custody & Support: In the US, both parents are expected to work with the court to come up with a "parental plan", which determines custody, visitation rights, and child support payments. It is again gender neutral, and support payments are determined based on income levels, who has custody etc. In some cases, one party might try to make a case to show the other as an abusive parent in order to gain sole custody. In India, the mom is awarded custody, and is considered to be more important for the well being of the child. Dad gets to pay and visit.

So what? Why is all this comparison useful? A few reasons below:
  1. It allows us to first get the facts straight, and dispel some media misinformation or myths
  2. It allows for critical thinking with the right perspective - esp, for lawmakers and legal community responsible for providing sensible conflict resolution.
  3. It influences voters to think differently - they ultimately drive for change in a democracy.
  4. It allows individuals to evaluate risk and exit options before entering a life time contract
Sounds convincing? Time to sell you bridges. The reality is that only a small percentage of divorces end up in court - mostly ego-centric, revenge oriented type where one party has no interest moving on. Others just settle out of court. In general, lawmakers will not bother to address a minority, even if the laws are unfair in the current context, as the issue may become a political or religious hot potato. And, in reality, people are not going evaluate risk and stop marrying because it is difficult to get out of the contract - countries like Chile and Brazil didn't even allow divorce for a long long time, and yet people there tried their luck with marriage all that time! Also, though the US laws appear more predictable, it is still fraught with issues, complex and expensive in using lawyers (e.g., to enforce support payments, to value stock options).

But every perspective helps, and the key take away in my view is the following:

  • Marriages may be made in heaven, but some of them are dissolved on planet earth, and for a good reason. It is mostly to get out of living hell (viz, a bad marriage, violent relationships).
  • In many cases, divorce is likely to result in financial or emotional ruin, atleast in the short run, but that doesn't necessarily make it a choice between the devil and the deep sea.
  • Divorce has its purpose in reinvigorating an otherwise defunct and unproductive life, and in escaping violence in some cases. Economically speaking, divorce helps individuals contribute to society (or GDP) in the long run, when they are no longer able to do so being together.
  • Intriguingly, societies have come up with dramatically different ways of skinning this cat with the stated goal of “benefit to overall society” (which implies better GDP, but never stated that way).
  • This is a complex problem with no elegant solution - but, societies that show resiliency in changing laws to reflect current socio-economic environment, create win-win situations and provide fair and predictable guidelines on host of issues will be more successful.
  • I think Indian laws will catchup with the US!

1 comment:

Sangeeta said...

Well, well, well..... very well thought out and written eventhough this type of topic has no ending. Rules, obviously, have to be different but I find that in India, the rules for divorce, the rules for minor child, the rules for major child - are quite conservative. Law, here, is still quite one track and strict.