Divorce Process - Mutual Consent or Contested, Fees and Documents

Divorce Process – Mutual Consent or Contested, Fees and Documents

Divorce Process: Divorce is a legal procedure of ending a marriage or matrimonial union. Divorce usually involves the cancelling or restructuring of a marriage’s legal responsibilities and duties under the rule of law of a particular country or state. A divorce is a legal action between married people to end their marriage before the spouse’s death. Divorce laws differ considerably around the world, but in most nations, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, alimony (spousal support), child custody, child visiting/access, child support, parenting time, and division of debt. In most nations, the law expects monogamy, so divorce enables each ex-partner to marry another. It takes a minimum of six months for mutually consented divorce; however, for contested divorces, the total duration of the process could extend from 2-5 years, case-specific.

Constituents of Divorce

Divorce is the adjournment of marriage constitutionally. In India, marriage and divorce come under personal matters, and the laws are based on customs and rights of different religions discussed below. There are three significant factors to be classified at the time of divorce:

  • Property settlements, liabilities and assets: In case of a mutual consent divorce, the parties are free to choose how they wish to distribute their marital assets. However, if there is a deficit of consent in how matters are to be resolved, the court may help the parties in the same. Nevertheless, the division can be demanded only of the joint conjugal property and not of the individual self-acquired property of a spouse. A Hindu woman may assert her husband’s property after his death under the Hindu Succession Act, 1956. Section 125 of the Code of Criminal Procedure grants support to wives, and there exist maintenance provisions even under the Hindu Adoption and Maintenance Act, 1956. For this, the property and the remuneration of the husband are considered by the court.
  • Alimony: When two people are married, they have a responsibility to support each other. In 1973 under the Code of Criminal Procedure, the right of maintenance was extended to any form economically reliant on marriage. The claim of either spouse depends on the husband having adequate means. When settling the payment on the alimony, the court will take into account the earning potential of the man and his capacity to restore his fortune and liabilities.
  • Child Custody: The Guardians and Wards Act, 1890, determines custody and guardianship aspects in India. The protection of a child either be sole, where only one parent has the custody, and the other may have the visiting rights. Shared or joint custody is where both parents share the custody, and third-party custody is where neither of the parents gets the custody. Usually, the custody of children below five years of age is given to the mother. Under the Muslim Women Act, 1986, the custody of boys below two years is given to the mother and after that to the father, but the daughter’s custody remains with the mother.

Divorce Process

Types of Divorce

In some areas, the courts will surprisingly apply principles of fault but might voluntarily hold a party responsible for a breach of fiduciary responsibility to his or her spouse. A judge must order a divorce by a court of law to come into force. The courts generally set the divorce terms, though they may take into account prenuptial contracts or post-nuptial contracts or simply approve terms that the spouses may have consented to privately.

The Indian Divorce system can be divided into two separate divisions.

  • Divorce by Mutual Consent: When both mates approve of dissolving a troubled marriage, they can pursue the Indian divorce procedure with Mutual Consent. One needs to register a joint divorce request. The court will provide a six to eighteen months period to the parties, called the cooling-off phase, to adjust. If they cannot settle, then they have to go through the terms of the agreement. And also have to file a second motion, and the court announces a Decree of Divorce. Divorce by mutual consent requires a minimum of six months to settle, whereas if it takes the court route, it might take around 2-5 years, depending on the situation.
  • Contested Divorce: The divorce where the husband or the wife wants separation but the other doesn’t is known as a contested divorce. It also applies when both the partners want a divorce but cannot accept issues like alimony or the custody of the children. In a contested divorce, one has to explicate, prove and justify reasons to the court, known as grounds, for wanting to separate. Reasons to get a divorce can be desertion, cruelty, adultery, impotence, chronic diseases like leprosy, venereal disease, etc. The other party can also challenge these types of problems. This makes contested divorce procedures long, stressful and comparatively expensive. It often appears that a couple starts the divorce procedures by way of a contested divorce, but throughout the trial, they agree to separate by mutual consent. In India, the grounds of divorce are determined based on the religion of the couple.

The legal method in India is considerably repulsive, lengthy and costly. A couple can control their legal expenses if they mutually handle a financial settlement.

Indian Marriage Acts

In India, marriage and dissolution of marriage come under personal matters, and the laws are based on customs and rights of different religions such as – The Hindu Marriage Act, 1955 rules for the Hindus, Sikhs, Jains and Buddhists.  For the Muslim community, the dissolution of Muslim Marriages Act, 1939. The Parsis are administered by the Parsi Marriage and Divorce Act, 1936. The Christians are governed by the Indian Divorce Act, 1869 and all the inter-community and civil marriages are governed by the Special Marriage Act from the year 1956. Due to the presence of different religious convictions in India, the Indian Judiciary has implemented laws distinctly for couples belonging to different religions. The mutual consent divorce procedure is slightly more effortless and fast, while the contested divorce method takes longer and depends on the religions of the partners.

Cost to Get a Divorce

The Court fees for listing a divorce are cheap; the cost is essentially in the expenses you pay your attorney. Lawyers tend to credit charges for arriving in court and doing any other work. Depending on how profoundly it works, therefore, it may cost anywhere from the low ten thousand to lakhs of rupees. One can hire lawyers walking around the premises of any family court who assure a win-win situation for a lump-sum amount of money. Such advocates usually trick the clients. Different lawyers in different cities have separate fees according to their High Court or Civil Court practice. For hearings related to the Supreme court, the fee increase is proportional.

  • Mutual Consent Divorce: The complete process for the mutual consent divorce by attorneys with experience for 1 to 3 years takes around from Rs 15,000 to Rs 30,000.
  • Contested Divorce: The contested Divorce is expensive as there are arguments and cross pieces of evidence. The Prosecution cost is directly proportional to the time duration of the case. The Prosecutor with 3 to 5 years experience charges a minimum of Rs 3000-7000 per hearing. Hiring an experienced advocate can cost you about Rs 35,000 per hearing.

Documents Required for Divorce

In a divorce petition, the parties are asked to submit the following documentary proofs:

  • Address proof of husband and wife
  • Marriage certificate
  • The marriage proof in terms of four passport photos of the marriage
  • Separate residence proof for spouses living separately for more than a year
  • Evidence of failed attempts of settlement
  • Last 2-3 years income tax statements
  • Profession and present remuneration details
  • Family background Information
  • Details of assets owned by the claimant

Conclusion on Divorce Process

The personal law associated with marriage and divorce is manifested properly in India with adequate legislation and case laws on the matter. However, these laws need to evolve with the changing society, and the family courts of India have done an exceptional job in identifying the same.

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