Divorce With Mutual Consent To Save Your Time And Money, And To Avoid Any Public Embarrassments
When there is divorce in a family, it is not only the couple that gets separated from each other. The entire family, children, and other relatives also get separated as well. In India, everything is done with family’s consent, so before a divorce, there is always a round table conference which is held.
The discussion isn’t just about the relationship problem with husband and wife, but also about the society and other people. Although we have accepted a lot of western culture like food, fashion, and language, divorce is still something that the society had not come to accept fully.
Why does divorce happen?
Nobody loves to get separated after having a relationship, especially the one that was meant to stay forever. However, divorcees do happen due to varied reasons like, lack of understanding, cruelty, harassment, adultery, etc.
Indian mentality typically compels couples to do compromises and adjustments, but things are changing now. These days, more and more men and women have become financially independent, and so is their thinking. Also there is more awareness on human rights given to each gender, their liberties, and empowerments to make their own decisions.
Generally, it has been seen that separation happens due to loss of interest, communication gap and misunderstandings, cheating in relationships, etc. When one of the spouse doesn’t show interest or time to other spouse, then that person starts getting frustrated.
Eventually this frustration leads to small arguments as their expectations aren’t met. When these arguments don’t sort out problems, then it slowly it turns into bitter fights. Most short tempered couples get also into physical abuses, while others resort to mental abuses.
Divorce in India isn’t as smooth as we think it should be. There are a lot of trials, allegations, and court hearings. The couple will need to manage it, along with hundreds of interrogations from family and neighbours.
There is too much money involved in a divorce case, where you have to pay your lawyer, their assistant, conveyance expenses, which is a total wastage of time and money.
There are thousands of cases that are already pending before the courts. Hence, you cannot be sure if your case will get sorted out easily, or not. In order to ease out certain divorce matters, governments has come up with the law for mutual consent separation.
Divorce by mutual consent:
According to the Section 13B in Hindu Marriage Act of 1955, both parties can file for divorce with mutual consent, and there will be peaceful separation without any trials. This amendment was done in 1976 by the Indian Parliament.
It doesn’t mean if both spouses have decided to get divorced, they will be easily approved. There are certain terms and conditions that have to be followed. When both spouses decide on divorce by mutual consent, then their lawyers should make them aware of how the process works, about court procedures, terms and conditions, child custody if any, issue on maintenance, and alimony.
Grounds for divorce:
- Both parties should have lived separately for the last one year. So if you are thinking of getting divorced in six months, then that wouldn’t be possible. You’ll have to show the court that for the last one year you both aren’t living together as a married couples.
- The court should be sure that you have tried, but couldn’t come to any other conclusion except divorce. This means that there is no adjustment or reconciliation that is possible.
- The time of getting mutual divorce is 6 months, but the parties can file for second petition anytime in between 6 and 18 months from the filing date of mutual consent separation petition.
When you have a child, your separation procedure can never be easy. There are lot many things that have to be taken into account –
- Who will take the physical guardianship of the child?
- How the expenses of that child will be managed? This will include his or her education, food, upbringing, higher education, marriage etc. Suppose there is more than one kid, then equal attention will be given to address the future of each one of them.
- How many times can the other spouse can visit the child in a week or month? Can it be regular, or restricted only for holidays or vacations?
Apart from all these aspects, there are financial discussions that are most important factor in a divorce.
One should keep everything transparent in regards to accounts and expenses. There are alimony, house, maintenance, and joint accounts which have to be sorted out. Everything is done with mutual consent. If there is any discrepancy, the case is drawn to the court, where it will be regarded as contested divorce not of mutual consent.
Petition for mutual divorce can be submitted at any of the three places –
- Place where marriage was held.
- City where spouses resided together.
- City where wife is staying after filing for petition.
Not all religions in India can get same outcome of their petition. Depending upon the religion the laws vary –
- Hindus follow Hindu Marriage Act of 1955.
- Christians follow the Indian Christian Marriage Act of 1872 and Indian Divorce Act of 1869.
- Muslims follow the Muslim Women Act of 1986, Dissolution of marriage Act of 1939.
- Parsis follow the Parsi Marriage and Divorce Act of 1939.
The process to get mutual consent divorce is a one, but it is mostly hassle free. When both parties file for divorce, their statements are recorded and presented to the Honourable court. The statement includes the reasons for divorce, settlements, expenses, child custody and many other things that are involved in a marriage break-up. By any chance, if one party is not able to show up personally in court, then he or she can send the appointed persona with power of attorney.
Once the statements are recorded, the court gives both parties, a six months trial period. In this duration, they can think again or even reconsider about their decision for separating. This is basically the second chance given to both the parties. After six months, even if they don’t agree to reunite, then another motion is given, which will be for am maximum of eighteen months.
However if the parties want, they can dissolve this relation before the end of eighteen months. By any chance, if the second motion isn’t held within eighteen months, then the honourable court will not pass the verdict for the said divorce.
The six months of cooling-off time period can also be waved off on special requests, and can be reduced to fifteen days or one month. However, if any of the party wants, he or she can withdraw their consent, after which it will be the court that will grant its final decision.
There are few questions that come across every individuals, who plan to get divorced. I am not sure if I am able to help, but here are some of the common doubts that lawyers generally come across, and their solutions –
- The major advantage of mutual consent is that there isn’t any quarrel, and also it saves time and money for both. Since there are piles of cases lying on desk, getting a mutual divorce will help you save on time quite significantly.
- Both parties can file their case in any of the family courts of the cities discussed above, but it is wise to file it at a place that is convenient for both parties to visit. If it is mutual consent divorce, then the procedures should be free from any such conflicts.
- A notary agent cannot grant you divorce. There is a legal proceedings that has to be followed in a family court.
- If any of the party withdraws mutual consent, and states that they want to apply for divorce in court, instead of going for mutual consent, then it can be done only on few grounds. For example, deliberate sexual intercourse with any other individual, desertion, cruelty, spouse missing for more than seven months, left the world, venereal disease, leprosy, or other spouse converted his or her religion.
- If any of the spouse remarries while divorce is still pending, then the person can face seven years of imprisonment as penalty.
- Generally, the presence of both parties is necessary during proceedings, but during unavoidable circumstances, he or she can show their presence through video camera for the proceedings. However, the court should be convinced that the party cannot arrange its presence by any means.
- If NRI couples were filing for divorce, then they can do this in a foreign country, where the couples are residing currently. Also, if the divorce is applied in India and one of the spouses stays abroad, then there can be camera proceedings to complete the case.
- It is the court’s duty to find if consent is taken by both parties mutually, and not by force or compulsion. If by any chance court has a doubt, or if isn’t satisfied with the answers, then the honourable court can cancel the petition.
- In mutual consent divorce, both husband and wife will have to agree on the amount, which will either be alimony, or maintenance to be given by wife to husband, or husband to wife.
- Regarding the child’s custody, if any of the spouse wants, they can request for joint custody, where one parent has physical custody, but both parents have legal custody. It means that the finances and expenses of the child will be managed by both.
Even if the both parties agree on mutual consent of divorce, and they have given their statement in recording, if the court isn’t satisfied with their decision, they will not get the verdict for divorce. It is the Honourable Court’s decision at the end.