It’s painfully funny to realize how a couple can be at the top of the world on the day of their wedding and when things begin to fall apart, how the blame game and big fat ego comes at play to make a mess of the separation. Ending a marriage is not only emotionally and mentally devastating but also financially draining. So you can at least make sure the procedure can be smooth and amicable for your partner and you. You can opt for uncontested divorce.
Uncontested divorce in India is also known as divorce by consent
In general, an uncontested divorce will get you through the judicial system quickly, with fewer complications and minimal financial burden. There’s no ugly mess that is otherwise involved in the contested divorce in India and both the parties separate with utmost ease and simplicity. It’s like an ideal form of divorce.
A comprehensive guide to uncontested divorce in India
1. What is an uncontested divorce?
Uncontested divorce or divorce by mutual consent is a form of divorce where the couple mutually decides to dissolve their marriage and share no disagreement about the same. It is the fastest, easiest and simplest way of divorcing your spouse. To obtain the decree of divorce by mutual consent, the few essentials are:
- Mutual consent of the couple to dissolve their marriage
- Mutual consent as to who would receive the custody of the child
- Mutual consent in deciding the amount of alimony or maintenance the husband would have to pay his wife.
2. When can the petition for uncontested divorce be filed in the court of law?
A petition for an uncontested divorce can be filed any time after one year of formalization of the marriage of the couple if they mutually decide to do so. No divorce decree would be entertained in the court within the first year of the marriage.
3. What is the minimum duration of separation before a decree of an uncontested divorce can be filed?
According to the laws of the land, one year of separation is a minimum criterion that is required before one can file for divorce by mutual consent.
4. Where can the decree of uncontested divorce be filed from?
The place of filing of the petition is important since it determines the jurisdiction of a particular court that can deliver the judgment regarding your divorce. It’d be prudent to consult your lawyer when you’re figuring out the jurisdiction as to where to file the petition.
There are three places where one can file a decree of divorce by mutual consent:
- The place where the marriage ceremony occurred.
- The place where the couple last resided together.
- The place where the wife is currently inhabiting.
5. What is the rough estimate of the money required for obtaining a divorce by mutual consent?
The fees estimated for every case definitely varies. But in an uncontested divorce, it should be bare minimum if you hire a good uncontested divorce attorney. The money that you’d have to spend would be on the fees of the lawyer, maintenance of your wife (if she wants any) and the fees of the court.
6. What are the laws that govern divorce by mutual consent?
An uncontested divorce is governed by the laws in accordance with whichever religions the separating parties belong to.
- Hindus, including Sikhs, Jains, Buddhists, are covered under Section 13(b) of Hindu Marriage Act, 1955
- Muslims are covered under the Shariat (personal laws) or the Dissolution of Marriage Act, 1939
- Christians are governed under the Indian Christian Marriage Act, 1872
- People who have had interfaith marriages fall under the Special Marriage Act, 1954 despite whichever religion they practice or profess
7. What are the compulsory conditions required before filing a petition for an uncontested divorce?
Three conditions are required to be satisfied in order to obtain the decree of divorce by mutual consent:
- Husband and wife have been living separately for over a year or more
- During this period of physical separation, they haven’t had the chance to act like each other’s spouses
- There’s mutual consent and wish to obtain the divorce
8. Who gets the custody of the child?
In an uncontested divorce, one big positive point is that the child isn’t dragged in between the ugly fights and mess caused by his/her parents. The custody of the child is mutually decided by the parents. And, both the parents are seen to be competent enough to take care of the child and his/her well-being.
The custody of the child is decided, taking a couple of factors in consideration like the child’s age, his/her wishes, interest, and health as well as the competent parent’s ability to raise their child in a healthy environment.
Over time the concept of joint custody has become quite common too, where one parent has the physical custody of the child while both of them hold the legal custody as well.
9. How is maintenance or alimony decided in cases of divorce by mutual consent?
The amount of alimony or maintenance is mutually decided and agreed upon by both the husband and the wife. This specific amount is decided keeping a few factors in mind:
- Social status of both the husband and the wife
- A requirement of maintenance for the wife
- Maintenance as well as educational expenses of the child
- Wife’s personal income and employment status
- Income of the husband
- Wife’s ability to maintain herself
In recent times, Indian courts have been quashing the plea of maintenance filed by the wives if they are earning more and are fully capable of not only sustaining but also maintaining their lifestyle.
If anything, in some cases, wives have been directed to pay maintenance to their husbands. This change has arrived due to the fact that women have often been seen to misuse the women-centric laws that were put in place to safeguard them.
10. How long does it take to obtain a divorce by mutual consent?
The minimum time to obtain a divorce by mutual consent is one month if your uncontested divorce attorney can convince the court to set aside the cooling period. Otherwise, it can take from as long as 6 months to 18 months from the date of hearing of the case, provided that no party withdraws their petition during the said period.
The court provides minimum 6 months and maximum 18 months of time to the couple in order to calmly think through about the divorce and if just in case they wish to change their mind and withdraw their divorce petition, they can do so. This period is usually called the cooling-off period.
11. Can any one party withdraw their petition to divorce the other?
Yes, any one party can withdraw their petition of divorce during the cooling-off period provided by the court. Withdrawal can be done by filing an application in the same court where the decree of divorce had been filed.
In such a scenario, the court cannot pass the divorce by mutual consent anymore since the consent has been withdrawn which formed the basis of such a divorce.
12. What can the other party do if one has withdrawn their consent?
In such a situation the party only has one choice to make: file for a normal divorce that can be contested in the court of law on any other ground (like cruelty, conversion, desertion, renunciation, etc.) except mutual consent.
13. Can divorce by mutual consent be challenged in the court of law?
Since the basis of an uncontested divorce is the mutual, agreed-upon consent by both the parties, neither one of them can challenge the decision passed by the court of law. They can only challenge it if their consent was obtained by fraud, force or any undue influence. If the consent was not free, consent would not be assumed to be given at all.
14. What is the procedure of obtaining an uncontested divorce?
- The petition has to be filed under respective act or law in a court of law which has competent jurisdiction to decide upon the case.
- The petition must be mutually filed, any time after one year of solemnization of the marriage.
- The parties need to provide proof to the court regarding their separation of one year or more during which they could not act like husband-wife to each other.
- The petition is to be filed in the way of an affidavit stating mutual consent as to the context of the dissolution of the marriage. Other agreed clauses like that of maintenance, alimony and child custody have to be mentioned.
- Individual statements of both parties need to be recorded.
- A cooling-off period has to be provided to the couple in case they wish to reconcile and call off the divorce proceedings.
- In case any party decides to withdraw their petition, no decree of divorce by mutual consent would be passed by the court.
- If neither party withdraws their petition during the cooling-off period, they are summoned on a decided date, where they confirm their mutual desire and intention to divorce each other.
- Decree of divorce by mutual consent is granted by the competent court of law.
15. When can the divorced partners remarry if they wish to do so?
The divorced partners can only remarry once the court has passed a final, binding decision announcing the two to be legally separated from each other. Now when does an appeal become final and binding?
If no appeal has been preferred, then after the lapse of the prescribed limitation period provided to file for an appeal. Or, if an appeal has been preferred, then after the disposal of such an appeal.
Thus, the divorced partners can remarry after 90 days from the date of the judgment passed by the court of law if no appeal has been preferred as such.
For more details on divorce by mutual consent read here.