Uncontested divorces are known as mutual divorce, while the ones that are being disputed are contested divorces. Let’s learn the difference between both in detail and how to navigate the same
Divorce is the act through which a marriage is declared void, and both the parties involved in it are free to part ways or remarry. Two types of divorce can take place: mutual divorce and contested divorce. In this article, we will dive deep into contested vs mutual divorce in detail.
Type of Divorce Petition
- Mutual Consent Divorce: This type of divorce is filed when both parties agree to end the marriage and come to a mutual agreement on issues such as property division, child custody, and financial support. In this type of divorce, both parties file a joint petition and attend court together to get their divorce granted
- Contested Divorce: This type of divorce is filed when one party does not agree to end the marriage or does not agree to the divorce terms. In this type of divorce, the court will decide on issues such as property division, child custody, and financial support if the parties cannot agree. This type of divorce is often longer and more expensive than mutual consent divorce, and involves multiple.
Mutual Divorce Meaning
As the name suggests, mutual divorce cases in India happen when both parties agree on breaking off the marriage. However, for this type of divorce to take place, the couple needs to be living away from each other for a year for legal proceedings to begin (Section 13B of the Hindu Marriage Act). But mutual divorce proceedings move at a very fast rate after that. The couple then files a mutual divorce form with a legal court. They do not need to give any grounds for divorce apart from the fact that the relationship has reached a point where it cannot be repaired.
Conditions and Documents Required to File a Mutual Divorce
Some specific documents then need to be submitted to the court, they are:
- Address proof of the husband or wife
- Marriage certificate
- Passport-sized individual photographs of the two of them
- Evidence proving that they have been living separately for a year
- Evidence showing how attempts at reconciliation have been unsuccessful
- Income Tax statements of the spouse for the last three years
- Profession and remuneration of the spouse
- Information about family background
- Properties and other assets owned by the spouse
The couple is allowed to have a six-month ‘cooling-off’ period where they can reconsider their decision. After that, if their stance remains unchanged, a second petition needs to be filed and they need to reappear in court. The judge then hears from both the husband and wife and if they are satisfied that all the requirements for divorce have been met, a mutual divorce decree is granted.
Sample of a Mutual Consent Divorce Petition
UNDER SECTION 13(1)(B) OF THE HINDU MARRIAGE ACT 1955
DRAFT FORMAT OF THE MUTUAL DIVORCE PETITION
BEFORE THE PRINCIPAL JUDGE, FAMILY COURT AT ___________
HMA PETITION No._______ OF___ 20__
IN THE MATTER OF:
(Name and address of the Husband) : Petitioner No.1
(AND)
(Name and address of the wife) : Petitioner No.2
PETITION UNDER SECTION 13 (1) (i-b) OF THE HINDU MARRIAGE ACT FOR DISSOLUTION OF MARRIAGE BY MUTUAL CONSENT
MOST RESPECTFULLY SHOWETH:-
- That The marriage between the parties was solemnized on ______at _______, by Hindu rites and ceremonies. The said marriage was consummated thereafter and the parties cohabited as husband and wife at the matrimonial home i.e. ______________. The particulars showing the details of the parties to the present petition is given hereunder:-
HUSBAND
BEFORE MARRIAGE.
Age Address Status
AFTER MARRIAGE
Age Address Status
WIFE
BEFORE MARRIAGE
Age Address Status
AFTER MARRIAGE
Age Address Status
- That there is one boy/girl name____ Date of Birth ____ age____ out of the wedlock of the parties. The parties mutually agreed to give custody of the child to the Husband / Wife
- That the parties could not adjust to each other due to temperamental differences and their marriage has broken down irretrievably it is now not possible for the parties to live as husband and wife anymore
- That all the efforts of reconciliation between the parties to continue the present marriage have failed and there are no further chances of reconciliation between the parties anymore
- That the parties are residing separately since _____________ and there is no cohabitation between the parties since then
- That the parties have now decided to dissolve the marriage legally through a decree of divorce on mutual consent. The parties have settled all their claims, counterclaims, etc. and the respondent-wife has received her entire Stridhan, Permanent alimony, maintenance, etc. and there is no due concerning any other claim between the parties now
- That the party has decided to withdraw all the complaints and counter complaints against each other
- That the present petition is not being filed in collusion
- That no other divorce proceedings are pending before any other court
- The matrimonial home of the parties was at ____________hence this court has the jurisdiction to grant the decree of divorce as prayed for
- That there are no legal impediments in the grant of the decree of divorce to the parties based on mutual consent.
PRAYER
It is most respectfully prayed that the court may accept the present petition and grant a decree of divorce between the parties thereby, dissolving the marriage between the parties.
Any other order which the court may deem fit and proper in the facts and circumstances of the present case be also passed in favor of the petitioners.
Petitioner No.1 Petitioner No.2
Note
The mutual consent Divorce and Alimony Petition draft should be annexed with the following documents:
- Affidavit of both the parties
- Joint photographs of parties at the time of marriage
- Proof of residence of both parties
- Proof of identity of both parties
What Is Meant by Contested Divorce?
In this type of divorce, one of the parties does not consent to the separation. This then leads to the divorce being contested in a legal court. A contested divorce occurs when your spouse is found guilty of a matrimonial offense. Divorce is possible if a couple commits a matrimonial offense. Your spouse is the one who has made a mistake. Due to your spouse’s acts or omissions, as well as his or her refusal to act reasonably, you have concluded that living together with your spouse is impossible.
There are several grounds to seek divorce from your spouse, out of these, the main and most common grounds are:
- Divorce on the ground of Cruelty
- Divorce on the ground of desertion
- Divorce on the ground of adultery
Unlike a mutual divorce, this takes a considerably longer amount of time. However, there is no concept of a ‘cooling period’ when it comes to contested divorces. A divorce lawyer files a petition which then gets listed for a hearing with the court. The other party is notified about the hearing and is asked to be present in court.
However, ex-parte hearings also take place in cases where the opposing party does not arrive. This is then followed by presenting evidence, statements from the couple, and cross-questioning. After that, the case is listed for judgment and if ruled in favour of the petitioner, a divorce decree is granted.
Difference Between Mutual vs Contested Divorce
| Aspect | Mutual Divorce | Contested Divorce |
|
Filing of Petition |
Jointly filed by both parties | Filed by one party |
|
Agreement on Terms |
Both parties agree on terms of divorce | One party may not agree on terms of divorce |
|
Court Involvement |
Limited court involvement as parties agree on terms | Extensive court involvement as parties may not agree on terms |
|
Timeframe |
Usually quicker as parties agree on terms | Often takes longer due to court involvement and disagreements |
|
Legal Fees |
Generally less expensive as parties agree on terms and may not need extensive legal representation | Often more expensive due to court involvement and need for legal representation |
|
Emotional Impact |
Generally less emotionally draining as parties agree on terms | Often more emotionally draining due to disagreements and court involvement |
|
Outcome |
Parties agree on terms and divorce is granted | Court may decide on terms of divorce if parties cannot come to an agreement |
Can a Mutual Divorce Case be Changed to a Contested Divorce Case?
There’s no conversion option available. Changing a mutual divorce case to a contested one involves terminating all the ongoing proceedings and initiating a new case, as direct conversion options are often unavailable. This process requires formal communication to the court, withdrawal from the mutual agreement, and the filing of fresh legal documents outlining grounds for a contested divorce. Seeking legal counsel is crucial, and court approval is necessary, with potential challenges arising from the need for compelling reasons for the transition, especially if both parties were initially in agreement. Overall, navigating this transition involves adherence to jurisdiction-specific procedures to ensure a smooth shift from mutual to contested divorce proceedings.
Can a Contested Divorce Case be Changed to a Mutual Divorce Case?
Certainly. You must submit a joint application to the court, requesting permission to convert the mutual consent divorce petition. This application must include affidavits from both parties. Various factors like the cooling off period have to be taken into consideration.
Conclusion
Marriage is something that cannot succeed unless both parties are willing to work on it. Hence, the moment one party stops working towards the relationship, a divorce can take place. Both types of divorces are quite common in today’s world, but, mutual divorces are much d from law and order connect with Vakilsearch, the largest serving platform for your legal, tax, and compliance needs.
FAQ’s
When can one apply for mutually consented divorce?
Both parties can apply for a mutually consented divorce when they agree to end their marriage and have mutually agreed upon the terms of the divorce, such as child custody, alimony, and division of property.
How much is the cost involved in the divorce procedure?
The cost of the divorce procedure depends on various factors, such as legal fees, court fees, and the complexity of the case. Generally, mutual consent divorce is less expensive than contested divorce as it involves fewer court proceedings and legal representation.
How much time does it take to get divorced?
The time taken to get divorced from case to case depends on various factors such as the jurisdiction, the complexity of the case, and whether the divorce is mutual or contested. Generally, mutual consent divorce takes less time than contested divorce, and it usually takes a few months to get divorced.
Is it mandatory for parties to be present in court during the mutual consent divorce process?
Both parties must be present in court during the mutual consent divorce process. Both parties need to attend court together for the first and second motions of the divorce petition to get their divorce granted.
When can I remarry after divorce?
After the divorce is granted, you can remarry immediately.
What are the steps involved in divorce?
The steps involved in the divorce process depend on the type of divorce (mutual or contested) and the jurisdiction. However, some common steps include filing a divorce petition, serving notice to the other party, attending court proceedings, negotiating terms of the divorce, and obtaining a final divorce decree from the court. It is recommended to consult with a local attorney to understand the specific steps involved in a divorce in your area.
Which divorce is better, mutual or contested?
Mutual divorce is often preferred for its smoother process and reduced conflict, as both parties agree to end the marriage. Contested divorce involves disagreement, leading to legal battles and higher costs. The better option depends on the couple's ability to communicate and reach agreements.
What are the benefits of a contested divorce?
Contested divorce allows individuals to contest various issues such as child custody, alimony, and property division, ensuring fair outcomes through legal proceedings. It provides an avenue for resolving disputes and protecting one's interests, even if it involves a more complex and time-consuming process.
Which type of divorce is best in India?
In India, mutual divorce is generally considered the best option due to its efficiency and reduced emotional strain. It enables couples to dissolve their marriage amicably, often with lower legal costs and faster resolution compared to contested divorce, which can be lengthy and contentious.
Can court reject mutual divorce?
Courts may reject mutual divorce petitions if they deem the terms unfair or if legal requirements are not met. Common reasons for rejection include insufficient grounds for divorce, lack of mutual consent, or failure to fulfil mandatory waiting periods. Legal advice and proper documentation are essential to prevent rejection.
