How does alimony work in mutual divorces? Read this article to find more information on the factors that determine alimony and when it need not be paid.

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The word ‘Alimony’ stands for sustenance. In India, the Court orders one spouse, generally the husband, to pay an allowance or alimony, for the sustenance of the other spouse. The court considers various parameters to settle the alimony paid to the spouse(s) after a contested or mutual divorce. 

The standard of living, income and financial status of an individual play an important role in deciding the alimony. Net worth, investment, and financial necessities also play important roles in deciding the same. In the case of maintenance, the court declares the amount after examining various parameters. The court orders the maintenance amount to be paid on a monthly, quarterly, or annual basis.

Factors that Determine the Amount of Alimony in Mutual Divorce

• Financial Condition of the Paying Spouse

The court examines all the documents related to the monthly income of the paying partner and decides on the amount to be paid. A spouse with a successful career is bound to pay a large amount of alimony.

• Requirements of the Maintained Partner

The allowance is decided according to the legal needs of the spouse who applied for the alimony in Mutual Divorce. Considerations are made on the reasonable and appropriate amount to be paid for maintaining a sustainable lifestyle. If the separating partners have children, their cost of maintenance by the liable partner is also considered before deciding on the alimony.

• Maintained Spouse’s Salary

If the maintained spouse has a stable income, that affects the decision on the allowance to be fixed. Whether alimony needs to be paid or not is something the court will decide.

• Length of Marriage

The duration of marriage determines alimony amounts. If a marriage has lasted for more than a decade, the maintained partner legally gets permanent alimony.

• Age of the Maintaining and the Maintained Partner

If the maintained partner is young, given the chance of acquiring financial independence, the young alimony recipient might be granted an allowance for a shorter period of time

• Health

If one partner has health conditions, the other party must make a large alimony payment for medical expenses and well-being.

Generally, one-fourth of the income is paid to the maintained partner. However, in a recent declaration and judgment of the Hon’ble Supreme Court, the amount is set to 25% of the husband’s/ wife’s monthly salary to be proper as an alimony rate. The husband needs to pay for the child support even if the wife remarries, as a responsibility of the father.  

In a mutual separation, the partners have the freedom to decide the amount of alimony. The couple can also walk out of the marriage without maintenance as declared in a mutual agreement. If maintenance needs to be paid, the court examines the parameters of the case and declares the alimony.

Divorce by mutual consent

In the Hindu Marriage Act, the option of mutual consent serves as a basis for divorce. An amendment in 1976 introduced section 13B to this act. With mutual consent divorce, both spouses agree to end their marriage, making the process quicker and more cost-effective compared to a contested divorce. Section 13B of the Hindu Marriage Act outlines the procedure and requirements for couples seeking a mutual divorce.

In this type of divorce, both the husband and wife mutually decide to separate. This approach is simpler and less time-consuming than a contested divorce, requiring less time and expense.

Conditions for the Mutual divorce as per section 13B 

Certain conditions must be met when filing a joint petition for mutual consent divorce:

One-Year Separation: The couple must have lived separately for at least a year, unable to continue their relationship. This separation period is a prerequisite before filing the petition.

Definition of Living Separately: Living separately does not necessarily mean residing in different locations. Even if the couple lives under the same roof, as long as they do not maintain the husband-wife relationship, it is considered living separately.

In the case of Sureshta Devi vs. Om Prakash, the Supreme Court clarified that living separately means not having a husband-wife relationship, regardless of residence.

What is the cooling-off period? 

When seeking mutual consent divorce under Section 13-B of the Hindu Marriage Act, a cooling-off period is essential. This six-month interval between the first and final divorce motions allows time for settlement discussions and the possibility of reconciliation.

The relevancy in cooling off period in divorce cases

Consensual divorce has distinct advantages, particularly its affordability. This method tends to be the most cost-effective way to dissolve a marriage. The cooling-off period, despite its time-consuming nature, is a key benefit as it reduced conflict levels. 

When conflict levels between spouses are low, mutual divorce maintains privacy, and convenience, and safeguards assets. It avoids unnecessary disputes, saving time and money. 

In the face of a rising number of divorce applications, mutual divorce emerges as the best option. It allows spouses to end their marriage discreetly and respectfully. 

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 When Do You Not Need to Pay Alimony in Mutual Divorce? 

There are different scenarios in which alimony is not needed to be paid. The facts depend on several parameters since each case is different from the other. The following are the conditions:

• If the Wife is Accused of Adultery

  According to Section 125(4) of The Code Of Criminal Procedure, 1973, if the ex-wife is in a relationship with another man, she is not legally entitled to alimony, whether or not she intends to marry him.
  
  Infidelity offers the paying partner the advantage of avoiding alimony. If the husband can prove his wife’s adultery in Court by presenting genuine proof, images, video, and numerous witnesses, he will not have to pay alimony.

• The Duration of the Marriage

  The length of the marriage determines the probable alimony to be paid. One must get out of a marriage as soon as one realizes that the union will not work out. Longer the duration of a marriage, the larger the quantity of long-term alimony.

• If the Partner at the Receiving End Earns Well

  The paying spouse’s alimony portion of the agreement can be waived if the spouse earns fairly well to maintain a moderate lifestyle. The court examines and determines the property and incomes of both parties and provides discretion. The court takes into account if the wife is capable of maintaining the same lifestyle they had maintained throughout their marriage.

• If It is Proven That They Don’t Need Alimony

  Some spouses apply for alimony even if they are fairly capable of maintaining a lavish lifestyle. If they have a trust fund, stock portfolio, property, savings account, inheritance, and other sources of income, and if it is proven in Court with necessary documents, alimony may not be granted. Ensure to check all the legal documents, bank accounts, and assets or seek help from a forensic accountant to track down all assets. This expenditure will be worth it to avoid paying larger alimony.

• If the Spouse has Started Living with Another Partner

  When the spouse at the receiving end starts living with a new partner, certain states might not grant alimony.

• If the Paying Party has Physical Disabilities

  If the paying spouse is physically disabled and can’t make a living, he or she might be exempt from paying alimony. The court might order the wife to pay for allowances in this exceptional case.

• Changed Lifestyle

  If the wife earns more than the husband, she might have to pay for the alimony. In such cases, one can work on simplifying the lifestyle, cost-cutting, and making a budget to avoid such situations. One can carefully plan and consider a lower-paying job so that they have to pay a lower amount of allowance. The court will allow only as much alimony as you one is capable of paying at the time of the hearing.
  
  However, if there is a child or children as a result of the marriage, the alimony scenario might transform. The parent with child custody might have to be paid alimony for childcare even after all or some of those above-mentioned factors have been ticked off.

Conclusion:-

Mutual separation or divorce is a lengthy and tedious process. The process and the laws differ in different areas or states, or countries. If a partner disagrees with the divorce, the court might have to settle the issue. Before Filing the divorce petition, the couple must reach a mutual agreement on alimony to ensure a hassle-free proceeding.

Read more:

• Procedure for Divorce if Marriage Is Not Registered
• Supreme court latest decision on divorce 2022
• Mutual Divorce Cost in India
• NRI Divorce Filing Process

FAQs

Can cooling period be waived off in mutual divorce?

Yes, the cooling-off period can be waived off in mutual divorce with expert legal guidance from Vakilsearch. Our experts are committed to ensuring your best interests are prioritized.

What is the cooling off period for mutual divorce?

The cooling-off period for mutual divorce is usually six months, but Vakilsearch's skilled lawyers can navigate this process in a lesser time frame, keeping your needs in mind.

Is there a cooling off period for divorce in India?

Yes, there is a cooling-off period for divorce in India, but Vakilsearch's dedicated lawyers can help you skip the cooling-off period, provided it is in your best interest.

Can we get a mutual divorce immediately?

While instant mutual divorce might not be possible, Vakilsearch's experienced lawyers will work to expedite the process while adhering to legal requirements.

What are the new rules for divorce in 2023?

Vakilsearch's legal experts can guide you through the latest divorce rules, ensuring you're supported throughout your divorce journey.