Divorce, also known as dissolution of marriage, means terminating the bond of marriage. It is a process through which the marital bond ceases as per the law of the country. It sets the couple free from all marital relations, rights and obligations. It allows the couple to come back to the status as if they are not married or gives them right to marry again.
In India, like many other personal issues, divorce laws are also different for various religions followed in the country. The Hindu Marriage Act, 1955, governs the divorce among Hindus, Buddhists, Sikhs and Jains; Muslims are governed by Dissolution of Muslim Marriages Act, 1939, Parsis follow the Parsi Marriage and Divorce Act, 1936 and Christians are governed by the Indian Divorce Act, 1869. All divorce disputes arising in civil and inter-community marriages are governed by the Special Marriage Act, 1956.
Types of divorce petitions
Divorce with mutual consent
When both the husband and wife agree to end their marriage, the court grants them divorce on the basis of mutual consent between the couple. Generally, divorce with mutual consent takes less time and relatively is inexpensive because the couple reaches consensus with respect to property, maintenance and child custody.
The duration of a divorce with mutual consent varies between 6 months to 18 months depending upon the court’s decision. As per section 13B of the Hindu Marriage Act,1955 and section 28 of the Special Marriage Act,1956, the couple should be living separately for at least one year before the beginning of such court proceedings. However, separation of at least two years is required under section 10A of the Indian Divorce Act, 1869. One thing which is to be noted here is that living separately as mentioned above does not mean living at different places but only the fact that the couple is not living as husband and wife is enough.
Divorce without mutual consent
The couple seeking divorce under this provision can file petition upon certain grounds only and stating proper reasons. There other blogs on our website covering Divorce without mutual consent.
The role of mediation in divorce
The family courts and laws encourage to settle such disputes with amicable settlements outside the courts instead of suffering of the whole family because of litigation and court proceedings. Mediation here is a non-adjudicatory dispute resolution process to reach on a cordial agreement for dissolution of marriage.
As per section 23(2) and 23(3) of the Hindu Marriage Act, the court according to the facts and circumstances of the case, directs to try reconciliation between the divorce-seeking parties. Similarly, section 34(3) and 34(4) of the Special Marriage Act provides reconciliation as the first preferred option for divorce related matters. The alternate dispute resolution mechanism is provided in Section 89 of Civil Procedure of Code in cases where there is any probability of a settlement. In 2003 under Civil Procedure-Mediation Rule, the concept of mandatory mediation was introduced including family matters involving matrimonial cases since in the eyes of law it is one of the most important relationship which needs to be preserved.
In 2013, in the case of K. Srinivas Rao v D. A. Deepa, Supreme Court held that even in non-compoundable criminal cases where parties want to settle the dispute through mediation should be sent for same making it necessary for divorce cases to be sent for mediation if there are chances for settlement between the spouses.
Goals of divorce mediation
When both the parties seeking divorce agree to go for the process of mediation, there are certain goals of such mediation such as:
- Creating an impartial, de jure and mutually agreed divorce agreement.
- Avoiding the expense and trauma caused due to litigation
- Minimizing malevolence and post-dissolution squabbles.
Why to resolve matter through mediation?
With the increasing number of divorce cases in the recent years, divorce couples have decide on dissolving the marriage amicably and , the judicial system has also realized the need of developing mechanisms to hear and settle disputes outside the courtroom. Hence, in the recent times popularity of mediation has increased around the country.
Advantages to a mutual divorce:
- Quicker- mediation involves much lesser time.
- Less expensive- mediation is a low-cost procedure as compared to other procedure.
- Less formal- the informality of the mediation allows the parties to be more involved than a court-driven process because of abundance of laws and rules to be followed.
- Confidential- it is a more private way to discuss the issues rather than in court where everything happens publicly since people also don’t get comfortable disclosing their personal problems.
- Preserves relationships- the biggest advantage of mediation is that it helps to preserve relationships, business and personal things that usually gets highly affected due to years of litigation. It is more of collaborative than belligerent process.
- Control- in mediation, the parties have much greater control over the negotiation and outcome of the problem.
- Better results- parties generally are more satisfied of the results of mediation than litigation since it is reached through mutual consent of both the parties.
The parties in mediation are not required to reach a settlement always, sometimes they don’t.
Process of Mediation:
Most of the mediation process involves five stages- not necessarily in the same order as described below and also any stage can happen more than once as and when required.
- Introductory stage– this stage involves finding your counsel and briefing the about situation couple. Both the spouses share the background information about their situation. Reckoning on how well the spouses know each other and communicate, the decision on a suggests an approach to optimize the probabilities of reaching an agreement.
- Information-gathering stage– in this stage, collect all the necessary information to be fully aware of all the facts of the case to make the mediation successful. It may include financial documents such as tax returns, bank and mortgage statements, insurance policies, etc. If the information required is unavailable or disputed then mediator suggests ways to get it. Also, discussion regarding the laws that will govern the mediation, which involves laws related to division of assets and property, child custody, alimony, etc.
- Framing stage– in this stage, outlining all the interests of both the spouses in order to know the outcomes they are wanting from the settlement. These interests involve priorities, goals and concerns of the spouses. Now, often the interests of the two spouses overlap with each other such as in case of child custody, alimony, and property division.
- Negotiating stage– it is time for negotiation to settle an amicable agreement. The negotiation involves amount and duration of alimony, child custody and time duration for child care, division of property and debt, etc.
- Concluding stage– in this stage, everything discussed and concluded is put in an agreement and both the parties sign it.
If the court has directed the couple for mediation, then the mediator prepares a settlement report and submit it to the court along with the signed agreement. In case the couple was unable to negotiate and reach an agreement through mediation, then spouses go for litigation.
Mediation has also become popular mechanism in recent times to resolve matrimonial disputes since it is less time consuming and cost-effective, giving the parties the chance to reach to an amicable solution with respect to alimony, child custody and all such disputes which completely destroy relations in case of court-driven process. The couples with such matrimonial disputes opt mutual over litigation for better outcomes in a less distressing way and minimize impact of dissolution of marriage.
— Himanshi Sangtani an intern at Ravindra Vikram Law Associates
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