Divorce is defined as the official dissolution of a marriage that requires a judicial procedure. It is the end of the marriage, and it is usually a difficult process for everyone involved. Divorce by mutual consent take place when both the parties to the marriage give consent to be separated from each other which also requires a proof that they have not been living together under one roof for a duration of not less than one year. On the other hand, a contested divorce is one in which only one party give consent to dissolve the marriage takes legal course against the other party for the same and the other party to the spouse resists to it being dissolved.
LEGAL REMEDIES IN CASES OF DIVORCE BY MUTUAL CONSENT:
- First step is to file a joint petition along with relevant paperwork ( i.e. birth details of both the spouses, details of their family members, assets owned and income earned by both the parties, ITR paid by both the parties paid during preceding three years) and in the family court having jurisdiction to hear the matter. The jurisdiction of the court can be such place where the parties last lived together or the place where marriage took place or where the wife is currently living. The joint petition submitted by both the parties should be duly signed buy both of them and if either of the spouses is not available then any of his/her family member can sign and submit the same in the family court. The court will then provide a date of hearing of the matter.
- Second step is that on the date of hearing both the spouses will have to be presented before the court along with their representatives and the court will then complete the inspection of the petition. On inspection of the joint petition the court will first try to do a settlement between the parties by reconciliation but if the spouses disagree on withdrawing the petition, then the court will move forward with the divorce petition.
- In the third step the court will order to record the statements on oath of both the spouses and pass the order of first motion which will be of a duration of 6 months that will be granted to both the parties.
- The fourth step involves second motion which will be filled on the expiry of 6 moths and not later than 18 months. Note: 6 month time granted to the parties can be waived off by the supreme court if the court is satisfied that taking more tie will only increase the adversities of the parties and that the parties have amicably settled the matters related to the custody of the children of the parties and have resolved the issues related to alimony.
- The fifth step is the final hearing of the parties wherein both the spouses need to be appear before the court.
- In the sixth step the court being satisfied passes the decree of divorce after which the marriage finally stands dissolved.
Note: Even after the divorce petition has been filled on the ground of mutual consent then either of the parties can withdraw their consent.
LEGAL REMEDIES IN CASE OF CONTESTED DIVORCE:
- The first step to contest the divorce without mutual consent is to fix a meeting with an advocate who is specialized in handling matrimonial matters and have relevant court experience.
- In the second step the advocated drafts the divorce petition after analyzing the facts of the case and files the petition with the family court having jurisdiction to hear the matter. The jurisdiction of the court can be such place where the parties last lived together or the place where marriage took place or where the wife is currently living. After filling of the same a notice will have to be served to the other spouse either by your advocate or by the court on paying a certain amount of charge.
- In the third step both the spouses appear before the court and if the court is satisfied that the parties can resolve the matter by way of reconciliation then the court will forward the matter to the Legal Services Authority where the conciliators try to resolve the matter by way of reconciliation. If the matter then stands resolved then the divorce petition can be withdrawn from the court of law and if not resolved then the case moves forward.
- In the fourth step if the matter is not resolved by way of conciliation, then the opposite part or the respondent files a written statement or a counter reply to the divorce petition in which the respondent either accepts or denies the allegation against him in the petition.
- In the fifth step the court provides the applicant with the reply to the petition filled by the respondent. All the documents filled in the court will be provided to either of the parties.
- The sixth step involves settlement wherein the court after the perusal of al the documents presented before it identifies the points of consideration or the unresolved conflicts under Order XIV of Civil Procedure Code.
- In the seventh step the court begins the trial which involves the examination of witness on behalf of both the parties upon serving prior notice to the parties and the witness, cross-examination, final hearing.
- In the eights step the court passes a decree or order of either denying or granting the divorce in the light of the evidence supported for the arguments advanced before the court.
- If the party is aggrieved by the decree of the family court, then in that case the aggrieved party can appeal to the High Court having relevant jurisdiction over the family court in which the divorce petition was first filled and if still aggrieved by the order or decree of the High Court then in that case it can appeal to the Supreme Court.
After looking at the stages that have to be followed for both the mutual consent and contested divorce and to prevent time-consuming or protracted litigation, the parties should always opt for resolving the matter by way of reconciliation. Though there may be a few differences in the actual approach, the ideas of phases and reasons in a contested divorce and divorce by mutual consent generally correspond to the legislatively set rules.