The term and concept of “marriage” is considered to be sacred and a union of two souls around the globe irrespective of people’s religion. In a layman’s word, a marriage is a union of two people who are socially and legally accredited and are balanced/ regulated by customs, beliefs, rituals and many more. As we all know, India is a secular country that follows not a single religion in particular but is best known for its unity in diversity and so, as a result, it has various personal laws that lays down provisions to solemnize the marriage between the Hindus, Muslims, Christians and Parsis. Now, in a country like India, the society still hasn’t accepted the concept of “Divorce” to be usual. However, when people choose to be separated from each other for various discomfort, they decide to dissolute their marriage whether mutually or voluntarily by either of the parties.
What exactly is Mutual 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.
Understanding the term “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.
Advantages of Settlement Agreement over Court Trials in Mutual Divorce
It is a well known fact that the Courts of India are always flooded with cases and more cases and very few are the luckiest to get their judgements. For the same reason, the emergence of Mediation, Conciliation and Arbitration is the very next option for people wanting to solve their disputes with lesser consumption of time. In fact, a settlement outside the court is also legally enforceable and equally admissible. However, both the parties have to consult their respective advocates/ counsels to conduct an “out of court” or divorce settlement. 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. It is not only beneficial for the parties for a speedy remedy but is also a boon for the esteemed judges to tick out one matter off their shoulders, as by agreeing upon the conditions of the contract agreement, it is evident and sure that the parties have highlighted and considered each of their grievances and agreed upon it.
How to file the 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 together/ 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.
Documents Required for the Agreement
- 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.
The sample of a Divorce Settlement Agreement can be accessed here.
In Indian societies, “Divorce” is taken to be the last option that the parties opt when there is no other way to live apart from being separated. However, we still cannot put it this way that marriage is a “social status” and if someone gets a divorce then there has to be something wrong with them. Rather, it is their right to dissolute their marriage, if a marriage is that unhappy and toxic.
What if one party to divorce does not like the contents of the settlement agreement?
If any party to the divorce does not like or approve or is satisfied with the contents mentioned in the settlement agreement, she/he may consult their attorney for negotiation of terms or make a counter-offer to the party who has made/sent that agreement.
Is it mandatory for both the parties to be present in the Court for the hearing?
In case of a mutual divorce, it is simply compulsory for both the parties to be present for the hearing in order to record their respective statements before the Court of Law. However, there are exceptions to it i.e., if in a case the party resides outside India or is unable to be present before the Court of Law due to a reasonable emergency (may it be medical causes or anything that the court finds reasonable), she/he may be allowed to be presented through her/his power of attorney.
Is a Divorce Settlement binding on both the parties?
Absolutely Yes. A Divorce Settlement is binding on both the parties whether the husband and the wife, only after it is properly and duly executed by the Court of Law.
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