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DivorceLegal Guidelines for Getting Remarried post divorce

March 2, 20200

Divorce is generally the last resort for married couples when mutual understanding becomes next to impossible. It allows the couple to do away with any obligations towards each other. The step does create an unwanted void in the lives of the couple, but it can be remedied by means of remarriage. However, before going ahead with the decision, getting a hang of the legal guidelines regarding the same is advisable so as to enable fluid completion of the process. Here, it is noteworthy that, as per the 2011 census of India, out of the total married population, 0.29% of the couples are separated, while 0.11% of the couples are legally divorced. The percentage of widowed population is around 4.5%. Also, the expected percentage of married population opting for remarriage is 4.9%.

Waiting time before Remarriage:

Once the legal formalities regarding divorce are completed, there is a certain waiting period before they can go ahead with remarriage. According to Section 15 of the Hindu Marriage Act, 1955, both the parties have to wait for a period of at least 90 days before entering into wedlock with some other person.

Decree of Divorce:

Both the parties are given a 90-days period for the appeal starting from the day of decree of divorce. However, in case no appeal is made during this period by either of the parties, then both of them become legally eligible to remarry after the lapse of the time frame. In several cases, however, estranged spouses have been known to approach the court with the plea that the divorce had been forced upon them owing to the partner’s wish to remarry soon.

Remarriage in Cases of Mutual Consent Divorce:

In case of Mutual Consent Divorce, the right to remarry is given a totally different approach. Here, as the divorce has been granted on the grounds of mutual agreement to part ways, there is no room for expectation of an appeal from either of the two parties. Thus, they are free to remarry on any day right after they obtain the Decree declaring the existing marriage to be dissolved.

Some possible hurdles in remarrying after divorce:

The decision to remarry after divorce is undoubtedly a trying one, particularly when it involves some of the most feared issues like what if the next marriage turns out to be worse, etc. The matter can become all the more complex if the couple have children, since the criteria then also includes not just finding a suitable life partner but also a good parent to the child/children and the rapport and comfort that should ideally exist between them. But then, it is best to voice your concerns fairly and clearly right in the beginning so that your prospective partner and you identify the challenges and are mentally prepared and aware of such important concerns.

Remarriage for Divorcees with Children:

There are ample instances of people opting to remarry after divorce in search of a new partner. Among these instances it is not uncommon to come across cases where one partner has children from the earlier wedlock. In such cases the onus falls on both the biological parents as well as the new step-parents to help the children in adapting to the changed circumstances. It is essential that the children properly understand the reasons behind divorce as well as remarriage after divorce.

Registration of Second Marriage:

The registration of the divorcee’s second marriage can be done only after he/she has already given divorce to the first spouse. Otherwise, the same can attract penal offense under Section 494 of the Indian Penal Code. In order to render the second marriage legal, the applicant is required to mention his/her first marriage in the marriage registration application. In addition to the form, the applicant is also required to provide an affidavit declaring that he/she is a divorcee.

Issues related to inheriting property:

In case the divorcee desires to claim a share of the spouse’s ancestral property or pension, he/she needs to reassure that the marriage was a legal one. If a man opts for a second marriage without giving a lawful divorce to the first wife, then neither is the second marriage legal nor is the second wife the legal claimant for the husband’s property.

Does second marriage obstruct child adoption in India?

No, child adoption in India is not affected by second marriage. If the pre-requisites mentioned by the Central Adoption Research Authority (CARA) are fulfilled by the applicant, then there is no scope for his request for the same to be turned down.

Thus, to avoid getting entangled in legal troubles, it would be appropriate if the divorcees carefully considered the aforementioned criteria before heading for second marriage.

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