Awaiting divorce

[bsb29]

Hi,
I am from India and I want to apply for can Immigration, but I am awaiting divorce from my partner. It’s already 1 year, my ex in laws are not accepting summons and my ex wife is living in Melbourne on work visa. My child is also living with them. Is there anyway I can apply for Immigration or I will have to wait until decree of divorce? Please assist me.

 

[Bryanna]

Hi,
I am from India and I want to apply for can Immigration, but I am awaiting divorce from my partner. It’s already 1 year, my ex in laws are not accepting summons and my ex wife is living in Melbourne on work visa. My child is also living with them. Is there anyway I can apply for Immigration or I will have to wait until decree of divorce? Please assist me.

Hi,

I'm assuming your in-laws live in India in which case they are right in not accepting the summons because your wife does not live with them. Divorces and murder cases cannot be argued in a court on a proxy basis.

Your divorce case will not proceed until you can conclusively prove to the court that you have served the summons on your wife + given adequate time for her to file her written say/her to be present in court. You would need to work out child custody and/or child support separately.

A suggestion that you may want to consider (and which would work):
As India and Australia are members of the Hague Convention, you could serve the summons on your wife by using the service of an Australian agency/court bailiff which is authorized to serve legal summons.

You must then submit evidence that your summons has been served in the Indian court. If your wife does not file her written say, etc, your divorce suit can proceed as ex parté.


For your PR application:
You must include proofs that your divorce matter has been filed in court + summons has been served + a letter of explanation stating that there is no possibility of reconciliation/ your marriage has broken down completely/ you do not want to sponsor your spouse even in future + a divorce decree will be submitted to IRCC later. You must state that your spouse is not a family member for your PR application.

As for your child, you would need to work that out with your wife i.e. if you would like to sponsor your child in the future for PR


Hope this works for you

 

[bsb29]

Thank you for this important information. My lawyer sent the summons thru high commission and it has been 6 months, we didn’t get any feedback from high commission about the summons. Even they are not responding to any emails done by court officials. Is there still a possibility that we can serve the summons thru court bailiff?

 

[Bryanna]

Thank you for this important information. My lawyer sent the summons thru high commission and it has been 6 months, we didn’t get any feedback from high commission about the summons. Even they are not responding to any emails done by court officials. Is there still a possibility that we can serve the summons thru court bailiff?

The Consulate General of India in Melbourne will not serve the summons. I don't think they provide this service.

What would work is to serve the summons by an Australian court bailiff. Do give your wife's work and residence addresses. You will need to find an Australian agency which is authorized to serve summons in accordance with the Hague Convention for the service of legal documents. Google for an agency + contact the Family Court in Melbourne.

You must then have the original declaration that summons was served couriered back to you. This declaration would be issued under oath by the court bailiff. You must submit this declaration + the courier receipts in the Indian court

 

[bsb29]

Thank you for the above information. I got something to work upon now, otherwise I was grappled in this process from a long time. I highly appreciate your assistance.

 

[Bryanna]

Thank you for the above information. I got something to work upon now, otherwise I was grappled in this process from a long time. I highly appreciate your assistance.

You're welcome

I think there are only a couple of divorce cases which have used the Hague Convention route to serve the divorce summons on a resident of another country. I'm guessing your lawyer won't be familiar with this process. If you need any additional advice, you can ask here


Good luck

 

[bsb29]

You are right. They don’t know this process and neither they are agreed to go by this way. I talked to my lawyer today. He says that judge is not agreed upon this process. She will wait for the response from ministry of affairs. They issued summons to them in November last year. Now she has been agreed to serve the summons to her parents locally.

 

[Bryanna]

You are right. They don’t know this process and neither they are agreed to go by this way. I talked to my lawyer today. He says that judge is not agreed upon this process. She will wait for the response from ministry of affairs. They issued summons to them in November last year. Now she has been agreed to serve the summons to her parents locally.

Your lawyer's advice is completely wrong. BTW did you pay a fee to the MEA (Ministry of External Affairs) for service of summons on your wife in Australia? To whom was it paid? Do you have the receipt?

And, the judge is wrong too (that is if your lawyer actually spoke with the judge about this today as it is just one day since you've posted this query and you were advised).

Service of summons for a divorce case, in accordance with the Hague Convention, by using a court bailiff of another country, is most certainly an accepted legal procedure in India. Both in the Family Court as well as in the High Court.

You could find yourself in a legal headache later if your wife claims (it could even be a couple of years after you get a divorce decree) that she was unaware of the divorce case because the summons was served on her parents (which by itself is legally incorrect and unacceptable in court as it should be served on her) + if later on she challenges the validity of the divorce decree granted in a higher/superior court.

I suspect your lawyer does not want to do the hard or smart work to get your divorce suit moving forward. And sorry to say this: Lawyers in India can be easily bribed by defendants to make someone lose a court case/delay the legal proceedings). Anyways


I do hope you find the correct legal way to serve the divorce summons on your wife (not on her parents)

 

[bsb29]

Hi
It’s been a long time since i have returned to this post and wanted you to update about my present situation. My partner received the summons last year and our case proceedings started last year but it’s still pending and i have filed another case to get child custody as well and hopefully i can get it resolved soon. Could you please tell what option should i pick in express entry application for marital status? Married, separated or divorced? And if applied for any province and got invitation, what documents should i send them for these two pending court cases?

 

[Manpreet12121212]

Hi,
I have applied for divorce( I’m in Canada) in Canadian court while my spouse is in India. It’s almost 6 months, I Have not heard any progress till now. My lawyer said we can’t do anything right now. We have applied for divorce on mutual consent bases. Is there any way to find out what is going on in mY divorce case in India and how much time its going to take.