DIVORCE BY MUTUAL CONSENT
Divorce by Mutual Consent is considered to a straightforward way of dissolving the marriage. It releases the party from the hassles of contesting the divorce causing pain to both parties in addition to saving time and money for both parties. The parties here mutually agree to dissolve the marriage and file for a decree from the court. But it is important the right flowing emotions between the husband and wife must not blind the logic and no decision must be taken in without thinking twice about the dire consequences.
It was introduced by the legislature vide an amendment in the year 1976 in the Hindu Marriage Act.
There are a few aspects about which the parties require to reach consensus
THE PARTIES NEED TO AGREE ON THE FOLLOWING BEFORE FILING FOR MUTUAL DIVORCE:
- Custody of children
- Alimony
- Returns of items
- Litigation expenses
WHAT IS THE PROCEDURE FOR DIVORCE BY MUTUAL CONSENT?
Let us look at the simplified procedure of Divorce by Mutual Consent for better understanding.
- Both husband and wife have to reach a consensus regarding the terms of legal separation which is mutual divorce.
- As per the settlement, a petition for Mutual Consent is carefully drafted under Section 13B of the Hindu Marriage Act or Section 10A of the Indian Divorce Act or Section 28 of the Special Marriage Act.
- The Divorce by Mutual Consent Petition will be filed in the Court of appropriate jurisdiction.
- Both the parties are required to remain present before the Court to get their statements recorder after which the First Motion will be passed.
- After filing of the Petition for Divorce by Mutual Consent, the presence of parties for the recording of the sentence is essential. In the event where a party is unable to appear in person, they can appear through a Power of Attorney who should preferably be a close family member.
- The law provides the provision to provide a cooling period to the parties of a minimum 6 months which may extend up to 18 months with an aim to give them time to rethink and reconsider their decision.
- Earlier this period was mandatory but since September 2017, the courts have been given the power to waive of such a period if it is satisfied that there is no scope of reconcilement between the parties. The parties may apply for the waiver of such period.
- The Second Motion is set up accordingly.
- During the cooling period, before moving the second motion, the parties are at liberty to withdraw their consent for divorce.
- If on the Second motion, upon recording the statement, it appears that the parties have been unable to resolve their differences, the Court will grant the Decree for Divorce.
- If the judge is of the opinion that there is a scope of any reconcilement between the parties, the court may set up another motion to record the statement of the parties.
- There cannot be an appeal from a decree or order by the competent court with the consent of the parties.
WHERE SHOULD THE PETITION FOR MUTUAL CONSENT DIVORCE BE FILED?
The Family Courts Act 1984 has established Family Courts in many districts where the parties have to apply for the divorce proceedings. The places where there is no family court, the parties should approach the District Court of the jurisdiction.
- The place where marriage was solemnised,
- The place where wife and husband last resided together,
- The place where the wife is residing at the time of filing of the Petition, or
- the place where the husband is residing at the time of presentation of the petition.
WHAT IF THE CONSENT FOR DIVORCE IS OBTAINED BY FRAUD OR FORCE?
The Hindu Marriage Act clearly states that the court must grant the Divorce only when it is satisfied that the consent to the Divorce by Mutual Consent has not been obtained by force, fraud or undue influence. It thus is the duty of the Court to ascertain that the consent of both the parties is free.
HOW CAN A NON-RESIDENT INDIAN COUPLE OBTAIN DIVORCE BY MUTUAL CONSENT?
An NRI couple can file a Petition for Divorce by Mutual Consent either in the foreign country in which the couple currently resides or in India as well.
The foreign court can pass the Divorce Decree in accordance with their procedures. The Indian Law recognised such decree if it has been passed by a competent Court considering the merits of the case.
WHAT DO WE HELP YOU WITH?
- Our expert professions will guide you throughout the procedure by providing you with the best advice.
- We will assign you a Case Manager who shall help you will the negotiation of the terms and conditions of the Divorce and drafting of the Divorce Petition.
- We will find you the best Lawyer as per your jurisdiction.
- At every stage of the trial, till its finality, you shall be notified of the updates of the case.
- We shall keep track of the lawyer assigned to you so that you face no troubles.
