Like marriage is bestowed with legal rights and obligations on both the husband and wife. Analogously, in order to exit the marriage, there are certain legal proceedings that are essential to be initiated to obtain divorce or annulment.
Divorce is caused due to the breakdown of the institution of marriage where spouses need to file the divorce under valid grounds to make the divorce petition successful.
But India is a land of diversified religious communities with distinct marriage laws, hence divorce procedure is equivalently subjected to diverse religious beliefs.
- The Hindu Marriage Act, 1955
- The Parsi Marriage and Divorce Act, 1936
- The Dissolution of Muslim Marriage Act, 1939
- The Special Marriage Act, 1956
- The Foreign Marriage Act,1969
On the basis of entire gamut of Indian Law regarding Divorce which elucidates that divorce can be obtained in two ways.
Mutual Divorce
Mutual Divorce refers to the dissolving of marriage legally by the consent of both the parties. Under Section 13B of the Hindu Marriage Act 1955, there are some procedures that are followed before landing to the settlement agreement. A couple has to come across first motion where they have to reconsider the consent. In case neither party withdraws consent, then the couple would come into the second motion stage in order to reconfirm the consent.
Now, the role of settlement agreement come into action. A settlement agreement is a written agreement relating to various actions such as child custody, visitation, property division, litigation expenses etc. reflecting the desire of both the parties. The court will review and approve the agreement and will enter the final decree of divorce based upon the terms.
Contested Divorce
Here, either of the spouse does not agree with the divorce or sometime may not agree to the terms of the divorce such as child custody, maintenance, division of property, or some other related issues. Based on a fault-based approach, one spouse accuse the other party out of some reason because of which the marriage could not work. Here, gender is no bias. All the accuses are examined and cross-examined and then proceeded further to decide whether the accused spouse is found guilty on the basis of the grounds mentioned in Section 13 of the Hindu Marriage Act, 1955.
If the accused spouse is found guilty, then a decree of divorce will be passed in favour of the aggrieved spouse. Here judge will ascertain the disposition of the assets and all the affiliated issues related to the children of the parties. So, the final decree resolves all the outstanding issues and grant them divorce effective on the date of signing.
Are you still confused between settlement agreement and final divorce decree?
A settlement agreement is a document that enlist the splitting of savings, division of assets and liabilities in an agreed proportion, child custody, visitation, and other documentations. In these documents, all the details are clearly specified along with the assets and debts each are responsible for. When a divorce is actually completed and a judge orders that the marriage has been terminated, both the party will be issued with a final divorce decree stating the basic information rights and responsibilities attached with a copy of settlement agreement. It is the actual document where it is clearly mentioned that the couple is divorced.
