MUTUAL CONSENT DIVORCE
- Shobhana Raj
- Aug 31, 2023
- 5 min read
In the realm of legal separations, mutual consent divorce holds a significant position in India. This relatively amicable way of ending a marriage allows both parties to reach an agreement and dissolve their union without having to resort to extensive litigation. Understanding the nuances of this process is essential for couples navigating the complexities of divorce.
ELIGIBILITY CRITERIA FOR MUTUAL CONSENT DIVORCE
To initiate a mutual consent divorce, certain conditions must be met by both parties involved. These conditions primarily revolve around the duration of marriage, grounds for divorce, and the ability to mutually agree on various aspects of the separation. Analysing these legal requirements and restrictions becomes crucial to ensure a smooth and valid divorce process. Broadly, For granting divorce by mutual consent, three ingredients have to be satisfied i.e. (i) the parties had been living separately for a period of more than a year,
(ii) they had not been able to live together and
(iii) that they have mutually agreed to dissolve the marriage[1].
The expression ‘living separately’ means not having conjugal relationship even if living under the same roof [2]. Recently in a landmark judgment, the Hon’ble Supreme Court has held that irretrievable breakdown of marriage is a ground for divorce and the Court may, in its discretion, grant divorce keeping in mind several factors ensuring that ‘complete justice’ is done to both parties.[3]
INITIATING THE MUTUAL CONSENT DIVORCE PROCESS
Securing the services of a competent advocate is of utmost importance when embarking on the mutual consent divorce journey. An experienced advocate can provide invaluable guidance throughout the process, ensuring that all necessary legal formalities are adhered to. Collaborating with an advocate is especially essential when preparing the divorce petition, which lays the foundation for the subsequent phases of the process. Once the petition is meticulously crafted, it must be filed in the appropriate court to commence the mutual consent divorce process.
COUNSELLING AND WAITING PERIOD
After the filing of the petition in the jurisdictional Court, the law stipulates for a statutory cooling-off period of six months where the parties have a chance to reflect and deliberate whether they want to separate or reconcile. This cooling-off period helps in ensuring that the decision to divorce is made consciously and not in haste. However, the cooling-off period of six months directory and the Court has the discretion to waive off statutory period to advance the interest of justice, if in its opinion the relevant criteria are met.[4]
As an integral part of the mutual consent divorce process, mandatory counselling sessions aim to facilitate constructive dialogue between the separating spouses. These sessions serve a twofold purpose: to explore avenues for reconciliation and to ensure the parties are making a well-informed decision regarding their separation.
CONSENT AND AGREEMENT
Achieving consensus on various aspects becomes the focal objective during this phase of the mutual consent divorce process. Through negotiations and settlement discussions, both parties strive to establish common ground regarding pertinent matters such as asset division, alimony, and child custody. Lawyers and mediators play a vital role in facilitating these discussions and aiding in the formation of a comprehensive and mutually acceptable agreement.
DRAFTING THE SETTLEMENT AGREEMENT
The settlement agreement serves as a pivotal document that outlines the terms and conditions of the separation. It encompasses key components such as asset division, alimony, and child custody arrangements. Ensuring fairness and comprehensiveness within the agreement becomes paramount, as it lays the groundwork for future compliance and enforcement.
Once the divorce petition and agreement are in place, they undergo a thorough review process by the court. The court examines the validity of the petition and its compliance with legal requirements. The Court is mindful that the entire proceeding is voluntary and by mutual consent of both parties. There should be no coercion or force influencing the decision of either party in proceedings of mutual consent divorce.
The Settlement agreement includes, but is not limited to, the following terms and conditions which are mutually agreed to by the parties:
i. Child Custody and Support
Determining child custody and establishing suitable arrangements for child support are pivotal aspects within the mutual consent divorce process. Both parties should take into account their rights and responsibilities, aiming to promote a nurturing and stable environment for the child despite the dissolution of the marriage.
ii. Division of Assets
The equitable division of marital assets and properties is an important term in the settlement agreement. The parties must be mindful in evaluating the value and nature of the assets while considering their individual circumstances to ensure a fair distribution.
iii. Alimony
Alimony, another significant consideration, involves the calculation and determination of financial support provided by one party to the other following divorce, taking into account factors such as individual income, potential earning capacity, and financial needs.
SECOND MOTION AND FINAL DECREE
Where the six months cooling-off period is not waived off by the Court, a second motion filing, not later that eighteen months from the initial court proceedings, is required to substantiate the sincerity and continuity of both parties' intention to divorce. This procedural step aims to eliminate any reservations or doubts about the mutual consent aspect of the separation. Following this, the court undertakes a thorough verification and scrutiny of the case, considering all relevant factors before issuing the final divorce decree.
LEGAL CHALLENGES AND DISPUTE RESOLUTION
Despite the ostensibly cooperative nature of mutual consent divorce, challenges and disputes may arise during the process. Understanding alternative dispute resolution methods, such as mediation, can help parties navigate and resolve conflicts that jeopardize a smooth divorce process.
MUTUAL CONSENT DIVORCE VS. CONTESTED DIVORCE
Contrasting mutual consent divorce with contested divorce sheds light on the advantages and disadvantages of each process. While mutual consent divorce offers a comparatively expeditious and amicable path towards separation, contested divorce involves contentious legal battles that often result in prolonged court proceedings and emotional strain. However, when the circumstances are such that the parties cannot agree to separate amicably, contested proceedings become necessary for the Court to pass a decree of divorce.
CONCLUSION
Recapping the entire mutual consent divorce process, it becomes evident that comprehensive knowledge, adherence to legal requirements and engaging in constructive negotiations are paramount for a successful outcome. A mindful approach, seeking legal advice, and understanding the intricacies of the process are key takeaway points for individuals navigating the mutual consent divorce journey.
FREQUENTLY ASKED QUESTIONS (FAQS)
To address common inquiries regarding mutual consent divorce, here are answers to some frequently asked questions:
Ques: What is the minimum waiting period for a mutual consent divorce in India? Ans: Six months after filing the divorce petition in the jurisdictional Court. However, this waiting/ cooling-off period is directory and can be waived off by the Court.
Ques: Can a mutual consent divorce be withdrawn after filing? Ans: Yes, Either party may withdraw their consent.
Ques: Are the divorce settlements and agreements legally binding? Ans: Yes
Ques: What happens if one party fails to attend counselling sessions? Ans: The Counselling fails and a settlement agreement cannot be drawn up.
Ques: Is it possible to modify the terms of the divorce agreement? Ans: Yes
Ques: What is the average duration of the entire process? Ans: The duration can range from a few days to a year depending on whether the cooling-off period has been waived off and the parties cooperation during counselling.
Ques: Can NRIs file for mutual consent divorce in India? Ans: Yes, if the marriage took place in India or if the couple last resided together in India or if the wife is residing in India.
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