Key Aspects To Be Taken Care Of Before Filing For Divorce


The dissolution of marriage is known as a divorce. According to the Encyclopaedia Britannica,[1] it is the process of terminating a marriage or marital union. A nuptial creates liabilities, rights, and duties amongst the spouses, and getting a divorce leads to the cancellation of those legal duties and responsibilities. The most common grounds for individuals aiming for divorce are lack of commitment, lack of communication, adultery, infidelity, domestic violence, irrevocable breakdown of the marriage, lack of equality in the relationship, mutual consent of both parties and abuse.

Every jurisdiction has its own laws and legislation for divorce and it varies considerably, however in most countries it requires the sanction of the court. The process of divorce usually starts from filing a petition for the same and concludes with adjudication of the court. The court then through its legal procedure may deal with issues of alimony, custody of the children, property distribution, division of financial debt and so on which arises during such a dissolution.

Difference between divorce, annulment and judicial separation

It is pertinent to note that divorce is different from annulment(which declares the marriage null and void, with legal separation or de jure separation or with de facto separation ) and judicial separation. In other words, there are two methods of ending a marital bond: annulment or divorce. An annulment declares the marriage to be void and null as if there was no such existence of such a relationship, while a divorce legally ends a marriage.

Judicial separation, on the other hand, does not terminate the marriage but only separates individuals, that is to say, if the parties do not cohabit for a certain period of time after a decree for judicial separation is passed either spouse to the nuptial can claim the dissolution of the marriage. They are at liberty to exist independently and separately from each other. The rights and obligations of marriage remain suspended during the period of such separation. Even in the case of judicial separation, the court can deal with the issues of maintenance of wife, custody of children, and property. In  Sohan Lal vs. Kamlesh[2]  the court elucidated that even in the case of judicial separation, a wife is permitted to claim maintenance from the husband if she is not able to maintain herself.

Key Aspects

Various aspects must be taken care of before filing for a divorce. Some of the key aspects are:

1. BANK ACCOUNTS AND INVESTMENT: If both the spouses have joint bank accounts then before filing for a divorce such account must be separated. Similarly, joint investments like funds, vehicles, shares, jewellery, etc. should also be divided amongst each other. Property can be separated by selling and moving out, retention of the house by one party, or can even own property jointly which would be beneficial for minimising taxes.

2. DOCUMENTATION: After arriving at a decision on how to share assets, liabilities, properties and parental responsibilities the same has to be documented and presented before the court of law when the question regarding settlement arises while applying for the divorce.

3. CHILD CUSTODY: the custody of children is a very important factor to consider before filing for divorce. There has to be a mutual decision regarding the permeant custody of the child. he custodial parent will be the primary caretaker for all the responsibilities of emotional, financial, educational, and medical needs yet the right of the non-custodial parent will not cease over the child and the right of access to see the child will still exist.

The issue of custody can be decided as per the wishes of the child once he/she attains a discernible age. The parties can also negotiate for joint custody where the physical custody will only exist with one parent and the same would be the primary caretaker. Every jurisdiction has its own laws regarding custody. In India, the custody of the child is governed by the Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956.

4. ALIMONY: Alimony is a type of monetary compensation granted to the spouse who is unable to sustain themselves. Such an amount can be given to the other spouse not only after the divorce but also during the divorce proceedings. The court while determining the alimony will look onto the financial conditions of the of either of the spouses and whether they are earning or capable of it.  According to the American Bar Association guide to family law[3], there are generally four types of alimony:

  1. Temporary alimony: This is also known as “alimony pendente lite” which is provided prior to the divorce, i.e during the divorce proceeding. The court orders the same to provide support to the spouse.  Alimony pendente lite is a Latin word meaning “pending the suit”.
  2. Rehabilitative alimony: Paid by the earning spouse to the other for a necessary period of time till the time the latter acquires occupation and becomes self-sufficient.
  3. Permanent alimony: Paid by the earning spouse to the other until the death of the payer or the receiver of the alimony.
  4. Reimbursement alimony: It is in the form of reimbursement for expenses that a spouse incurs during the nuptial. These may include expenses on education, medical care etc.


The process of extinguishing the marital alliances between the spouses through a legal process is divorce. The grounds for divorce vary widely from country to country. Marriage may be seen as a contract, a status, a sacrament, or a combination of these. While dissolving the nuptial various factors has to be kept in mind. Along with the separation of the parties to the marriage, it also involves the division of property, assets, and the issue of custody of the child. These factors play a major role in getting the desired result out of such a dissolution.


[1]DIVORCEENCYCLOPAEDIA BRITANNICA(The Editors of Encyclopaedia Britannica,15th edition, 2018).

[2] Sohan Lal vs. Kamlesh, A.I.R. 1984 P H 332 (India).


This article is authored by Vidya Shankar, Third-Year, B.A. LL.B (Hons.) student at Amity Law School, Delhi

Also Read – How to Avoid Alimony?

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