Marriages Are Made in Heaven & Divorce?

Divorce - A Painful End to a Happy Ending

The known reality is that women tend to verbalize their problems in order to process them; and men often tend to (wrongly) assume that, when they’re talking about those problems, they’re asking for advice. Men and women have different emotional requirements and that a misunderstanding of the differences leads to the breakdown of relationships

What is Divorce?

To be crisp and short, the mere act of divorce means ending or dissolution of the marriage which so existed between two parties, which then puts a full stop on all the marital duties and ties and are to live separately after divorce. Furthermore, divorce is of two types- Mutual Divorce and Contested Divorce. Mutual Divorce is when both the parties i.e., the husband and the wife mutually and explicitly agree and give their consent to peacefully get separated from each other. On the other hand, Contested Divorce is when divorce is initiated by either of the spouses (either by the husband or the wife) under the grounds mentioned u/s 13(1) of the Hindu Marriage Act, 1955.

Under the Hindu Marriage Act, 1955, the term and notion of Mutual Divorce is defined u/s 13B. Further, Section 13B(1) mentions additional three conditions that has to be present in order to seek the relief of mutual divorce. They are as follows:

• The parties to the marriage must be inhabiting separately for a period of 365 days or an year;

• The parties have not been able to live together;

• The parties have mutually and explicitly agreed to dissolute the marriage.

Settlement Agreement

To begin with, the term “settlement” very basically means is to reach out for a solution or to solve something in dispute and when it comes to settlement agreement, it precisely means that a settlement agreement is a legally binding contract that focuses to iron out all the disputes and grievances among the parties. Basically it is an agreement that is formed in advance as a consequence before the grant of any actual decree or judgement. Such an agreement is equally legal at par and can be accorded via mediation instead of a long anticipating court trial. However, it is to be kept in mind that ultimately the Hon’ble Court of Law has to assent to such a settlement.

For a speedy remedy the emergence of Mediation, Conciliation and Arbitration is the very next option for people wanting to solve their disputes with lesser consumption of time. For an easy and smooth settlement, the parties merely have to agree to each other’s conditions prescribed under the contract agreement so made by their respective counsels or else it can also be held liable for breaching of contract.

Filing of Settlement Agreement

As we come to legalities, everything has steps to follow whether big or small. Likewise, in order to being granted a settlement agreement, there are few easy steps to be followed by the parties and they are as follows:

• Step 1: Filling for the divorce petition jointly.

• Step 2: Both the parities i.e., the husband and the wife are to appear before the court of law to furnish their statements respectively.

• Now that the parties’ work is done, the Hon’ble Court of law considers their divorce petition and tries to accommodate and harmonize the parties keeping a track of their statements.

• The Court rules on the First Motion.

• Further, the Court gives the parties a period of six months to reconsider their decision of dissolving their marriage.

• After that the second motion is filed after a period of eighteen months.

• Following every step till now, if the court finds it true, it grants the divorce decree.

For the entire process the court fees have a minimal charge, but, the cost of affording private counsels may make it costlier. However, women in this case are a little benefitted as they can seek free legal aid from the legal assistance cell pertaining to the type of divorce being asked for and the tentative time being consumed for settling the same.

Needed Documents

• Residential proof of the parties.

• Details of the Husband’s and Wife’s place and kind of work (occupation) as well as current salary.

• Document validating their marriage (marriage certificate).

• Background information of their respective families.

• Photographs of their wedding as a proof.

• Evidence that exhibits that the parties (husband and wife) have lived separately for almost a year.

• Evidence that exhibits non success of efforts to reunite.

• Income tax returns of the spouse(s) earning.

Enforceability of Settlement Agreement

It must be clear and followed up by now regarding what exactly is a settlement agreement and the benefits of the same, however, here the question that primarily arises is if such an agreement is actually enforceable before the Court of Law, and the answer to that is Yes, Settlement Agreements are duly enforceable by law right after the moment where both the parties sign the agreement and the same has been assented to by a competent judge. Post that, such a settlement agreement becomes the “order” of the court from which it got its approval that can then be enforced by the parties having signed it.

Provisions to be added in the Divorce Settlement Agreement

General Clauses: This is the basic and general clause that states their identity, place of residence, occupation and other necessary details. [may also include owned asset(s)].

Rights, Child Custody, Visitation Timings: The Indian Legal System has made it clear vide various case laws and principles that the welfare of the child is the utmost priority and so the rights of the child/children consummated by the parties while being in marriage shall be duly decided and given custody to the party that the court finds to be fit for the benefit of the child. This provision shall also include the visitation rights to the other parent who does not get the child’s custody. Last but not the lease, this provision shall also focus on the distribution/ contribution of the child’s expenses for her/his studies and living.

Splitting of Properties and assets: This is a tricky yet essential clause for the parties getting divorced. This provision shall contain all the details of the properties and assets that is to be divided among the parties. If any asset or property is jointly owner, they may seek a remedy from their respective attorneys.

Alimony: If both the parties are earning, then usually this provision is not looked at, but if either of the parties are earning then then party who earns has to pay alimony to the opposite party permanently based upon their financial status, nature of work/ job, financial capacity etc.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

"Men are from Mars and Women are from Venus", by John Gray accurately depicts differences between Men and Women. In reality "Men are from Earth, Women are from Earth" So, Deal With It :)