What is divorce with mutual consent and Contested Divorce?
The procedure of divorce with mutual consent in India is less expensive and less traumatic as compared to the contested divorce procedure
- Divorce is a legal process of separation after marriage, when both the parties (husband and wife) wants to separate with their own will after marriage, is called at divorce with mutual consent. Both husband and wife can apply for the divorce mutually.
- Divorce is called a contested divorce or divorce without mutual consent when it is filed without the approval of either of the spouse(husband or wife). Most of the times the reason for filing such divorce can be cruelty, adultery, desertion, conversion, mental disorder, communicable disease, presumption of death or in case of renouncing the world.
Most Important Points to remember while Divorce
- Child Custody - Which partner will get the child custody after divorce
- Alumni/Maintainance - If one of the partner is unable to meet his daily expenses then other needs to pay him a certain sum of amount . It is subject to mutual understanding between the partners(husband and wife).
- Settlement of Property and Assets - Settling the ownership rights of property and asset between the parties(Husband and wife)
When one can apply for Mutually consented Divorce
Husband and wife both should be willing to get separated is the first and foremost rule when it comes to a divorce with mutual consent. Also following things one should be aware of before filing a divorce :
- Husband and wife should be staying separately for the period of minimum one year.
- Husband and wife both are agreed for the divorce.
- They are unable to live together anymore.
- Minimum one year from the date of marriage
Provision’s in the Law for Mutually consented Divorce
As we know there are different acts for marriage registration, the same applies for divorce as well, the law has different provisions as per the marriage acts which are :
- Section 13B of the Hindu Marriage Act 1955(Period of separation = 1-year minimum)
- Section 28 of the Special Marriage Act, 1954
- Section 10A of the Divorce Act, 1869 (Period of separation = 2-year minimum)
- Section 32B for Parsi Marriage Act 1936
- And under the sections of Christian and Muslim Marriage Act.
Documents Required for Divorce with mutual consent
Common Documents are required for Filing a divorce petition, also our expert's lawyers help you prepare the documents if anything is missing :
- Marriage Certificate
- Address Proof - Husband and Wife.
- Four Photographs of Marriage.
- Income tax Statement of last 3 years.
- Details of profession and Income (Salary slips, appointment letter)
- Details of Property and Asset owned
- Information about family (husband and wife)
- Evidence of Staying separately for an year
- Evidence relating to the failed attempts of reconciliation
Step-by-Step Divorce Procedure in India
LegalDocs expert and trusted lawyers help throughout the process of divorce right from start till end. After the thorough consultation from LegalDocs team, every citizen needs to follow the process :
One has the option to file the petition in any one of the following family courts -
- Where the couple was last residing as husband and wife,
- Where the husband is presently living.
- Where the wife is presently living.
Now let's Understand the steps involved while filing a Divorce :
- Step 1: Drafting and Filing Petition (submitting divorce application)
The drafted application needs to be submitted at family court along with applicable court fees. You need the right advice and guidance of a trusted and experienced divorce lawyer for the drafting of the petition.
- Step 2: Issuing Summons ( Court Notice)
A formal notice(summons) is issued by a court is sent to the second party, which is generally dispatched by speed post. The purpose of sending a summons is to let the other party know that the process of divorce has been initiated by their spouse. If the husband has initiated the procedure summon will be sent to the wife.
- Step 3: Response (to Court Notice)
After receiving the Summons, the party needs to be present at the court on the date mentioned in the summons. If the party fails to attend then the court will give a chance of hearing even if that is failed court will issue an order and will end the process of divorce.
- Step 4: Trial at Court
In this step, the court will hear both the parties along with proper evidence and witnesses. Respective lawyers will conduct the examination and cross-examinations of parties, witnesses, and evidence in front of the court. This step is very important step while filing a divorce.
Interim Orders –
In interim orders, any party can file a temporary petition with respect to maintenance and child custody before the court. This can be filed after hearing and during the pendency of the court proceedings. This order stays in power until the final court procedure of the Divorce. Not every divorce proceeding's gone through interim orders. Filing petition is optional and is solely dependent on the spouse (husband or wife).
- Step 5: Argument
Here, the respective advocates assigned by both parties will argue before the court on the basis of documentary evidence filed and depositions of the witnesses. To win the argument the experience and conduct of lawyer matter’s a lot.
- Step 6 : Final Order(Divorce completion)
The final order will be passed by the court upon successful completion of all the stages mentioned before. If any party is not happy with the final order they can challenge the same in higher courts.