Filing for a mutual separation may seem hectic if you do not know how to go about it. Read this blog to know more about the processes involved.
Divorce is the only answer when both parties in a marriage agree that they can no longer live together. They would file a joint petition for mutual separation with the court without making accusations against each other.
As per 13B for the act – Divorce by mutual consent, (1) Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been living separately for a period of one year or more, that they have not been
Requirements for a Mutual Separation
- Include a copy of the marriage certificate and proof of both parties’ current addresses.
- Four Wedding Portraits.
- Tax returns over the past three years.
- Information about one’s job and earnings (Salary slips, appointment letter
- Property and Asset Ownership Information
- Details about one’s ancestors (husband and wife)
- Proof of a year-long separation
How to Get a Divorce by Consent of Both Parties
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Step 1: File for Divorce
The first step in a mutual separation is to file a Legal separation document, which can be done at any of the following locations:
- The courthouse in the last place the couple lived
- The marriage was solemnised in the courthouse.
- The courts in the region where the wife is currently living
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Step 2: There is a Hearing and Inspection in Court.
Both parties must attend in person before a family court judge, accompanied by their respective attorneys. When the petition is delivered before the court, it will be examined in detail as any supporting papers. Reconciliation can also be attempted, but the mutual separation procedure will proceed if this is impossible.
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Step 3: Keep a Statement Record
This will be done if the court orders recording the party’s remarks under oath after thoroughly reviewing the petition.
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Step 4: The First Motion
Following the recording of their testimonies, the court ruled in favour of the first motion. They must wait six months before they may file the following motion again. However, the subsequent motion must be filed no later than 18 months after the first motion was passed.
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Step 5: A Second Motion and a Final Hearing are the Next Steps in this Process.
To proceed with their last court hearing, they must first file a second motion. In the family court, the final ruling includes testimony from both parties, who testify under oath before the judge. In addition, the SC recently found that the 6-month interim period might be avoided if the court desires. There is no compensation, custody of children, or property disputes. Thus the courts will grant the divorce if they are satisfied that both spouses agree to the divorce.
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Step 6: Divorce Decree, the Final Step in the Process
The mutual separation is completed when the couple states they have no disagreements about alimony, custody of children, or property division. As a result, the couple must agree before the court can make a ruling. The court issued a divorce judgment, stating that the marriage had been dissolved and making the divorce final.
Where to Submit a Divorce Petition?
Depending on where you got married and where your marital home is, you can file for divorce in the family court that has jurisdiction over it, or you can go to the family court where you got married and file there.
Is the Wife Eligible for Spousal Support Following a Divorce Where Both Parties Have Agreed to Pay a Lump Sum?
There’s an ongoing debate in India about whether or not wives can claim maintenance under the Code of Criminal Procedure (CrPC) after their marriage has been dissolved by the joint agreement under Section 13B of the Hindu Marriage Act and the receipt of a lump amount as final settlement. Prasenjit Mukherjee v. West Bengal and others. As a result, it’s impossible to say whether a wife who receives a lump sum as a full settlement after a mutually agreeable divorce is eligible for maintenance because there is no well-established law on the subject.
The Bride and Groom’s House
Contrary to popular belief, “family home” and “matrimonial home” are not synonymous. In Ontario, a family’s matrimonial home has unique status since it is the essential commodity parents own and the centre of family life. At its broadest, “matrimonial home” is stated in section 18 of the Family Law Act (Ontario) as “all real and personal property owned or held by a person and which is or was ordinarily occupied by the person and [they’re] partner as their family residence during or immediately before the mutual separation of the parties. “It’s not uncommon for divorced couples to disagree over who gets to keep the family home. The court might make temporary or final orders to allow only one husband to live in the marital home. An “exclusive possession” order is what it’s called.
Section 19 of the Family Law Act requires the court to take the following factors into account when issuing an exclusive possession order:
- The well-being of the youngsters who are housed there;
- Orders about the property that has already been made;
- Existing instructions for assistance;
- Financial stability for both partners;
- Any agreement in writing between the parties;
- Availability of adequate and cheap housing for those who are being requested to leave
- Violence done by one spouse towards the other or their children during a divorce violates this rule.
What Does This Imply in Terms of Practice?
There are significant consequences to having to leave your marital home. Only after careful consideration of all parties’ interests does the Court issue an order for exclusive possession. A spouse claiming exclusive ownership of a marital residence must prove that the other party can obtain a place of their own. There must be proof that it is in the children’s best interest to continue living in the family household and with only one parent, to the detriment of the other.
For Example: In other words, do the children know any different type of home than the one they share with their parents? Is it near their school, additional activities, and social circle of choice? Are there any unique physical requirements the home can meet for a child? Children who have trouble adjusting to new situations or have emotional requirements that are best satisfied by being with family may benefit from being home-schooled.
Is It Necessary for the Child to Remain at Home as a Source of Stability Because of the Conflict Between the Parents?
Children’s ideas and preferences regarding where they reside should be presented to the court when they are old enough to do so. There will undoubtedly be times when selling the house is more important than keeping it for the kids. A ‘Voice of the Kid Report’, prepared by a caseworker, therapist, or attorney after visiting with the child to obtain their opinions and preferences, is the most common way children’s views and tastes are submitted to the court.
Parents may present proof from a child’s school, nanny, or another relative.
These sources of evidence may be accorded more or less weight depending on the person’s neutrality towards the subject matter. This is one aspect of family law in which the behaviour of one’s spouse may be taken into consideration. In the case of physical violence perpetrated by one partner against the other, an order of exclusive possession may be obtained.
A few examples of aggression include:
- Violence
- A form of emotional abuse;
- Intimidation
- Threats.
The court may order one spouse to leave home if there has been domestic violence so that the kids and the other spouse can be protected.
A complete custody order is a serious matter that should not be trifled with lightly.
- In some cases, the evidence is insufficient to prove that only one spouse should be allowed to live in the marital residence, and the order may not be issued. Additionally, courts may not impose an order for sole possession because of fear that permitting only one parent to dwell in the home will compromise that parent’s claim or parental time with the children.
A parenting assessment can be completed while both parents remain in the marital residence, and courts have been known to allow this arrangement. The courts can also mandate a format known as “nesting”s. It is common for parents to live in the same house with their children while taking turns caring for them.
Conclusion
Consider seeing an attorney to find out if your home is a marital home, your rights, and what you can do to enforce them. Alternatively, you may want to talk with a divorce mediator. Vakilsearch can help you with all the legalities and make your work easy.
