MUTUAL DIVORCE
WHAT IS MUTUAL DIVORCE
Mutual Divorce is divorce where both spouse mutually agrees to end their marriage and approach the Family court with single mutual consent divorce petition for divorce whereunder parties move to court with their mutual divorce settlement. Mutual divorce is also called an uncontested divorce. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve it legally. Important requirements is the divorce through mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues.
As per the Law there is no minimum or maximum limit of maintenance. Every spouse who wants to dissolve his or her marriage always prefer to have their divorce mutual as it gives less pain and saves the time and energy. It could be any figure or no figure. The next important consideration is Child Custody. This can be worked out effectively between the parties.
mutual divorce with child, Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses. Consent divorce is always recommended by mutual divorce lawyer as it is wise step and reduce pain. We could even file divorce if the other party is not willing to get a divorce– this is called, ‘Contested Divorce‘.
MUTUAL DIVORCE PROCEDURE
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DIVORCE BY MUTUAL CONSENT UNDER HINDU LAW
In the Hindu Marriage Act in the year 1976 Section 13B, was inserted to include divorce by mutual consent under hindu law, and it provides that decree for divorce can not be passed before completing total 18 months.
1 year separation period for mutual consent divorce is required under Section 13B(1), after which divorce petition can be moved by a couple. This may be followed by another six months of waiting mutual divorce period under Section 13B(2) for getting a decree.
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PETITION FOR MUTUAL DIVORCE
Following are most important aspects to be covered in mutual consent divorce petition. Following points are most important part of mutual divorce formalities and it forms mutual divorce terms and conditions in total. To make your mutual consent divorce petition complete, you have to mention terms and condition of both spouse mutually decided on following points, otherwise there are chances of dispute over some issues even after mutual divorce order of mutual understanding divorce.
PERMANENT ALIMONY OR MAINTENANCE.
At the time of divorce if wife or husband is unemployed or financially weak, it could be mutually decided how much money to be given to him or her. Sometimes if marriage did not worked because of one spouse and other spouse feels like victim, in such situation while coming to the conclusion of Mutual Divorce, how much amount of compensation to be paid to spouse who feels as victim. The amount could be paid at the time of mutual consent divorce as permanent maintenance (One time lumpsome compensation) or Monthly maintenance to the other time till certain time mutually decided between the parties.
JEWELRY AND ARTICLES TO BE EXCHANGED.
In Mutual consent divorce both spouse agree to terminate their marriage. Sometimes parties gets separated first and then apply for the mutual consent divorce. Sometimes they file consent divorce and after finalization of the dissolution of marriage by mutual consent they get separated. Depending upon circumstances spouse exchange article and jewelry they have of each other. Mostly during the mutual divorce procedure, they exchange the article and jewelry with each other amicably.
Role of the Divorce lawyer is very much important at this stage of mutual divorce procedure as their are huge chances of spouse to fight over their articles and jewelry. Its a duty of mutual divorce lawyer to help both spouse to avoid any dispute and amicable talks on exchanges of article and jewelry.
CUSTODY OF CHILDREN.
Most crucial and delicate stage of the mutual divorce process is Child custody. Being biological mother and father both parents wish to have custody of the children. In India there is prime importance to the mother and children mostly could not live without their mothers. Most of the time till age of 12 years mothers get the custody of the children. Family law child custody will be well explained by the Divorce lawyer before starting initially so that every party could understand outcome of the case because most of the parents doesn’t know how divorce affects children.
MONTHLY MAINTENANCE OF CHILDREN.
The amount could be paid at the time of mutual consent divorce as permanent maintenance (One time lumpsome compensation) or Monthly maintenance to the other time till certain time mutually decided between the parties. Maintenance to the children depends on various aspect like lifestyle, school fees, college fees, institute where they go for study, tuition fees, training, medicine etc.
RIGHTS TO VISIT CHILDREN.
When it is decided mutually between the parties that one spouse will be having the custody of child then other spouse gets the right to visit children. The visiting rights depends on many aspects like school time, college time, holidays, vacation, tuition time, festivals, visit location etc.
SCHOOL, COLLEGE, FURTHER STUDIES EXPENSES OF CHILDREN.
In the metro cities like Mumbai, Thane in most of the cases both parents go to job and earn. Sometimes both parents mutually decide to divide the expenses of education. In some cases where only husband earn there he only takes full responsibility of education of children.
PARTIES CLAIM ON PROPERTIES OF EACH OTHER IN FUTURE.
At the time of filing mutual divorce petition both the party mutually decide and disclaim rights over properties of each other or mutually decide about the rights on the property at present or in future depending upon circumstances.
WHERE MUTUAL DIVORCE CAN BE FILED ?
Mutual Divorce can be filed in the family court which jurisdiction covers any of the following prerequisites :
- The place where husband and wife last resided together.
- The place where husband is residing after separation.
- The place where marriage is solemnized.
- The place where wife is residing after separation.
DOCUMENTS REQUIRED FOR MUTUAL DIVORCE:
Here is the list of required documents for mutual divorce:-
- Certificate of Marriage.
- AADHAR Card or room rental agreement of Husband and Wife as Address Proof.
- Marriage Photograph.
- Marriage Invitation Card.
- Passport size photo of both husband and wife.
Please note that for preparing mutual consent divorce papers in India you must have above documents. In case of absence of crucial documents like marriage photo or invitation card, both parties need to give joint affidavit to court.
STEPS FOR MUTUAL DIVORCE PROCEDURE TO BE FOLLOWED.
Following mutual divorce steps to be followed while making application for mutual divorce in court.
1. FILING THE PETITION:
First step in mutual divorce procedure is filing of the Petition. Initial meeting and discussion with husband and wife happens and discussion will take place on mutual divorce terms and conditions. On finalization of terms mutual divorce lawyer will draft and send mutual consent divorce petition draft pdf to both the parties for approval. Once approval is given by the both the parties mutual divorce lawyer will file Mutual Divorce Petition as per mutually agreed mutual divorce terms and conditions between both the parties.
2. FILING AND FIRST DATE OF HEARING:
After finalization of Mutual Divorce Petition by both the parties next step in divorce process is filing of the petition and after filing of the petition number will be given to your petition and first date of hearing will be given. On day of first hearing court sends both husband and wife to the marriage counselor for counselling.with both the parties their points of dispute and try to resolve the same so that parties could rethink on their decision of divorce. After first day of counselling, Counselor sends his report to the Court and Court gives 6 months cooling off period i.e cooling off period in mutual divorce laid under law, to the parties so that they can resolve their differences in the said 6 months period.
3. COUNSELING AND JUDGEMENT :
After 6 months on subsequent date court again sends both husband and wife for Counselling. If both the parties fails to resolve their differences, counselor tries again to resolve the dispute between both the parties. If counselor failed to resolve the dispute, he send report to the Court. On the basis of the report final Judgement of Mutual consent divorce will be passed accordingly.
COST OF MUTUAL DIVORCE IN INDIA:
References and more to read :
UNCONTESTED VS CONTESTED DIVORCE:
Lets understand 3 major differences between contested and uncontested divorce (divorce without mutual consent)
- Contested divorce is time consuming and Uncontested divorce is less time consuming.
- Contested divorce generally could take more than 3-4 years and Uncontested divorce takes only 6 months.
- Contested divorce is expensive and Uncontested divorce is less expensive.
DIFFERENT RELIGION DIFFERENT LAWS FOR MUTUAL CONSENT DIVORCE :
MUTUAL CONSENT DIVORCE UNDER HINDU MARRIAGE ACT:
It is also called section 13b divorce by mutual consent. Mutual divorce under hindu marriage act is governed by the Hindu Marriage Act, 1955 and under the same both husband and wife have right to get their marriage dissolved by a decree of divorce on grounds of divorce specifically mentioned in Section 13 of the Hindu Marriage Act, 1955.
For 13b divorce by mutual consent following conditions need to be followed:
(i) Husband and wife have been staying separately for a period of one year or more.
(ii) That they are unable to stay together.
(iii) And that both husband and wife have mutually agree to dissolve the marriage. Under these circumstances, 13b mutual divorce can be filed.
DIVORCE BY MUTUAL CONSENT UNDER MUSLIM LAW :
In divorce by mutual consent under muslim law, there are two categories of divorce – ‘judicial’ and extra-judicial. Mutual Divorce under Muslim Law falls under the extra-judicial category. There are two sorts of divorce by mutual agreement called ‘khula’ and ‘talaq e mubarat’.
‘Khula’ under Muslim Law is claimed to be an agreement between the husband and wife for dissolving a union in lieu of compensation (part of her property) that’s paid by the wife to her husband. albeit this consideration is vital , the particular delivery of property isn’t a precondition for the validity of the divorce under ‘khula’ system. An irrevocable divorce takes place once the husband gives his consent, and therefore the husband has no right to cancel the ‘khula’ on the bottom of consideration not having been paid.
Under the ‘mubarat’ sort of mutual divorce, both the parties must desire divorce, and thus the proposal for it can emanate from either wife or husband. Both these parties should be willing to separate. Once the offer is formed , the opposite party must accept it, and once it’s accepted, the divorce becomes irrevocable. Under the Sunnis, once the husband and wife enter into a ‘mubarat’, all the rights and obligations of the parties come to an end. In Shias, a correct form is imposed, i.e. the word ‘mubarat’ should be followed by the word ‘talaq’ for the divorce to require place. These words should be uttered in Arabic, and therefore the intention to finish the wedding should be expressed clearly.
In both ‘Khula’ and ‘Mubarat’, the wife shall undergo the ‘iddat’ period and in both, the divorce is an act of the parties and no intervention by the court is required.
DIVORCE BY MUTUAL CONSENT UNDER CHRISTIAN MARRIAGE ACT :
Mutual consent divorce under christian marriage act is governed under the Divorce Act, 1869. Section 10 A of the Act gives the provision for dissolution of marriage by mutual divorce in christian marriage act. The petition for mutual divorce are often presented by both the parties in the district court. The petition should be presented upon the grounds that the parties are living separately more thane 1 year. Sometimes parties opt for mutual separation in marriage to enable them to file Petition.
MUTUAL DIVORCE UNDER SPECIAL MARRIAGE ACT :
Mutual consent divorce under special marriage act is provided under section 28 of the Special Marriage Act. The petition should be presented upon the grounds that the parties have completed 2 year of marriage before filing the divorce petition the mutual divorce in special marriage act and that is mutual divorce duration for divorce by mutual consent under special marriage act.
COMMON QUESTION :
Can we file mutual divorce online?
We can not file mutual consent divorce online in any court of India. We have to follow the procedure laid under law even though there is mutual agreement between husband and wife.
Can we execute mutual divorce agreement to get mutual understaning divorce?
No, we can not execute mutual divorce agreement for getting divorce. However, before filing divorce to avoid misunderstanding and dispute, parties can execute mutual separation agreement between husband and wife to mention all settlement terms in writing before approaching family court.
Is mutual divorce through power of attorney possible?
Yes, it possible if the party is residing abroad then mutual consent divorce through power of attorney is possible but only is respect of presenting the mutual settlement agreement between husband and wife, in form of Mutual Divorce Petition.
Is it possible to withdraw 498a after mutual consent divorce?
Yes parties to mutually agreed divorce, can mention it in consent term file in Mutual divorce petition and accordingly during the proceeding or after it could do the same.
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OUR OPINION IS BEFORE DIVORCE THINK TWICE. DIVORCE IS NOT AN OPTION…
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