This article explains all you need to know about getting a divorce by mutual consent.
“A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life.”
Divorces are tough ! But so are marriages that take a toll on your physical/mental well being, divorce is no more a taboo, and people are increasingly accepting the harsh realities of their relationships, and are taking decisions so as to get into better relationships.
In India divorce if contested by the other party, can be got only by proof of cruelty (physical or mental), desertion (unjustified separation of 2 years), adultery (sexual intercourse outside wedlock), insanity etc.
Since the judicial system is fraught with delays and other systemic problems, a contested divorce can easily take you years in the Court.
A divorce by mutual consent on the other hand, is much more pragmatic. It is based on the idea that when two persons agree to get into a relationship out of their free consent, they should have the liberty to end it as well when it turns sour.
Now cutting to the chase, here is what you need for a mutual consent divorce:-
Before going to the Court.
i) A separation of one year before filing the case please note that actual physical separation is not required, even if both parties are sleeping in the same bedroom they can be said to be seperated for the purposes of mutual consent, if they are not living together as husband and wife;
ii) A flawlessly drafted MoU (Memorandum of Understanding) that settles the terms on which you part away, people don’t understand the importance of this, this is extremely important so as to end the matters with a finality once and for all, there are no loose ends and make sure there is no litigation in future;
Once the above is done – you have to get drafted the Divorce petition that encapsulates the contents of your earlier MoU.
When you file your divorce by mutual consent petition – it comes up for hearing and your statements are recorded, then the court gives you a period of 6 months (basically to think over your decision) after which, on recording of final statements divorce decree is passed.
Monetary Settlement/Maintenance/Alimony/Child Custody issues.
A Mutual Consent petition gives you the flexibility to come to your own terms with respect to the issue. If a full and final settlement is reached – the money can be paid before the court at the time of final hearing.
In all this procedure enables couples to part away amicably on a good note, without ruinous litigation, and without much expense.
The Author is a Divorce Lawyer based in Delhi, practising in the Supreme Court of India and can be reached at firstname.lastname@example.org