• Mutual consent, alimony, visitation process

Dear Legal Experts


As both the party agreed to apart on Mutual Consent Divorce, Would like to know the detail process how this would work 

Step by Step

Since our place of marriage was in Mumbai, I’m based in Abroad on work purpose, I'm visiting mumbai for this process completion

•	Should we got to the Family court directly or via appointed lawyer
•	Do we need the witness at the time of filing the divorce
•	How much time does it takes for the filing the divorce 3 days, weeks etc.
•	Do I need to re appear on court on hearing multiple times, Is there any fast track on one time complete formalities as I’m working abroad and can’t come multiple times
•	Can I appoint POA ( Friends or Cousins)
•	6 months is mandatory, can’t be reduced if both parties want to amicably dissolve at earliest
. Do I need to protection from Poilce / Laywer as her family would come with some false case or if they increase there alimony or maintenance


Alimony / Maintenance
•	My Ex demanding the Property from me on her name to transfer 1 X Flat, Which I agreed , would that can be done on the same time of after wait period of 6 months once divorce granted through court this need to be done
•	What is the best process to make registration without paying the Property Tax or Gift Deed, or the Divorce court paper is ok with this for Future Ownership
•	We have one more property additional where we holding joint ownership, How about that how can I take her name completely out of it from the ownership, do I need to have some legal paper work for that.
•	Our Child has PPF account , What should be done ?
•	What happens due to unforeseen if My Ex death or she re marry would that be transferred to my daughter or her parents? Or back to me 
•	Is it wise to keep the property on her name or make it joint Her and My Daughter
•	She is demanding monthly expense of 30 k , Do I need to support Day one on her monthly expense or after the MCD granted

Child Visitation

•	What is the best Father right protect for Child Visitation ( Girl Child 11 years) after the divorce as I do take my daughter on her Vacation with me abroad during holidays for 3-4 weeks, Do I need to mention that on the MCD filing
•	What is the normal visitation process works for Father for Girl Child
Asked 4 years ago in Family Law
Religion: Christian

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15 Answers

Dear Cleint,

Should we got to the Family court directly or via appointed lawyer -- U can go direct but without an advocate, u can`t manage and also paper work, divorce petition etc, so better appoint advocate.

• Do we need the witness at the time of filing the divorce ---- No

• How much time does it takes for the filing the divorce 3 days, weeks etc. -- Good lawyer will manage in 3 days otherwise, 7 to 10 days.

• Do I need to re appear on court on hearing multiple times, Is there any fast track on one time complete formalities as I’m working abroad and can’t come multiple times -- Only after 6 months waiting period for once after filling divorce. 6 months period can also be waived.

Rest ask u brief.

• Can I appoint POA ( Friends or Cousins) -- Permissible.

• 6 months is mandatory, can’t be reduced if both parties want to amicably dissolve at earliest --

Six Months Waiting Period In Section 13B(2) Of Hindu Marriage Act For Divorce By Mutual Consent Not Mandatory:SC [Read Judgment]...

Read more at: http://www.livelaw.in/six-months-waiting-period-in-section-13b2-of-hindu-marriage-act-for-divorce-by-mutual-consent-not-mandatorysc-read-judgment/

. Do I need to protection from Poilce / Laywer as her family would come with some false case or if they increase there alimony or maintenance ---- Appoint advocate.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

If it's on mutual terms than everything the child custody, maintenance alimony shall be decided by both the parties. So if there is question of false FIR then how can there be mutual divorce??

You hire a lawyer both parties make an joint application in form of affidavit for the mutual divorce, it should be signed by both parties.

After it is filed in court the court shall record statements and adjourn matter for six months and refer it to mediation.

There shall be several mediations if already agree there shall be no outcome of that if even a case chance is give so that parties can take last chance.

After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.

You have to make a detailed mou(agreement) with your wife discussing child custody, maintainance alimony and other aspects like she shall not file cases for maintenance or other allegations.

Than that mou can be submited in court signed by both and decree of divorce can be given on that.

To reduce the 6 months period you have to go before supreme court as supreme.court has authority and give direction to reduce the time

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Divorce:

1. First of all you two shall have to mutually decide on the terms based on which both of you shall seek mutual consent divorce. All the terms shall have to decided in advance and mentioned in a MOU to be executed and notarised by both of you which will be part of the MCD Petition setting the terms for the divorce. This is the most important aspect of the entire process for which you shall have to apply your mind carefully. You should file the MCD petition jopintly signjed by both of you on the said agreed terms through your lawyers.

2.There is no role of the witness in this matter and the Court will pass the decree of divorce.

3. Your lawyer should prepare the plaint well in advance along with the MOU and both of you shall have to verify the draft copy of the plaint and the MOU for apending your signature when you arrive in Mumbai. If everything is made ready, then the MCD petition can be filed on the same working day of your arrival.

4. Even for filing the MCD petition, you may escape arriving at Mumbai and sign the petition before and get it notarised by the appropriate officer of your local Indian consulate for sending to your Advocate for his taking the signature of your wife before filing the same. Both of you shall have to appear before the Court on the day of the 2nd motion after 6 months of filing the petition to confirm that both of you still want divorce and after that your divorce decree will be passed.

5. You can not be represented by your POA in the instant matter.

6. For waiving the 6 months mandatory period, you shall have to apply before the Supreme Court which itself will be expensive and time consuming not saving much time actually.

7. Every thing shall have to be clearly detailed in the said MOU including the fact that none of you have any grievance against each other and have not and also shall not file any complaint/case against each other and claim any further amount under any pretext. Your said divorce proceeding shall have to be supervised and guided by your lawyer.

Alimony / Maintenance:

1. If you transfer the flat in her name before hand, she might finally refuse to appear on the final day of the MCD motion making the MCD petition rejected after 18 months. So, it will be prudent on your part to get the transfer deed ready and register the deed in the Court after divorce decree is passed by commissioning the Registration i.e. by calling the Sub-Registrar at the Court for registering the said deed. This is important.

2. Divorce decree issued by the Court does not convey title of property. Registration of deed of Conveyance does. So, get the gift deed registered before the Court as advised above. There is no prop[erty tax involved here.

3.Both of you shall have to agree to the condition that she shall have to transfer her share of the said property in your favour and the transfer/gift deed in connection with the said property also should be registered by commissioning as suggested above. The said gift deeds shall have to be made ready well in advance to get registered on the same date of availing the decree of divorce.

4.You can not do any thing about your child\s PPF account, he/she will continue to hold it and will decide about it on attaining adulthood.

5. After your availing decree of divorce , you stay completely detached from her legally and in case of her eventual demise, her legal heirs at that point of time will inherit her said properties. Her marriage does not debar her from acquiring or continue to acquire the said properties.

6. All these issues will be decided by both of you mutually. What you shall think as wise might not be accepted by her.

7. You shall have to comply with the terms you have agreed to for getting the MCD decree after the decree is passed and not before that or not without ant Court order.

Child Visitation:

1.As has been stated above, all these terms shall have to be mutually decided by both of you amicably which will be mentioned in the MOU to be signed by both of you.

2. There is no 'standard visitation process' for father's visiting his daughter. You can ask for daily or weekly viisit after her school or your office for two hours at any nearby park These are to be decided by both of you mutually since it is going to be a mutual consent divorce decree to be prayed by you.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

1) you need to first contact a local lawyer

2) get petition for divorce drafted by him

3) consent terms should be agreed to between parties and enclosed to divorce petition

4)you dont need any witness for divorce

5)it should take a week for lawyer to draft petition , filing petition

6)you need to come to court at time of filing , removal of office objections , first motion , second motion

7)you can appoint family member as POA

8) you dont need any protection as no FIR is filed against you

Ajay Sethi
Advocate, Mumbai
87955 Answers
6207 Consultations

5.0 on 5.0

Hi Friend,

I have read all your issues and facts of your case, on that basis my opinions are as below, it will be mix points wise and not separate step by step heading wise.

1) Firstly, you decide what you want to do and go for MCD or Judicial Separation. If you go with MCD than you will have to accept all demands of your wife's. And after taking lumpsum amount and flat, her chances of remarrying again are more. However if you go with Judicial Separation wait period is more and you can put your own points as well.

2) If you go for MCD it will go in front of counselor first and than in court. In front of counselor you both have to keep your both points and on that basis a list is created an offer and acceptance in between husband and wife, and the same is forwarded to judge for final decree.

3) If you feel that the both flat should be remain on your name or you want to give to daughter, than go for alimony and monthly maintenance don't give divorce to wife so she couldn't remarry again and you also could not remarry.

4) The maintenance and alimony for wife and daughter will come approximately 30-40K for both as you are NRI.

5) while preparing for MCD keep all points list as below

A) Flat will be remain on daughter's name and your wife's name.

B) Try to give alimony and maintenance to wife and daughter monthly. So wife should not remarry.

C) No need to appoint lawyer for MCD process but for JD you need to appoint Lawyer.

D) MCD can be done within week if both parties agree on each other points.

E) You can appoint your any family member or can give POA to talk on your behalf.

F) For flat and PPF account your remain as nominee.

G) You can ask for twice monthly visitation to meet child. And can take her abroad as well for 3-4 days.

H) You can go for MCD and you will get visitation permission.

J) If you don't want to pay transfer of onwership taxes on flat than make relinquish deed between them.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Mutual divorce take a six months time and some court have allowed divorce to be taken without waiting for six months period. You do not need any witness except documents proving your marriage and ID proof.

Secondly POA is not applicable in matrimonial cases snice you have married you need to be present personally to get divorce. Get a lawyer appointed since you may not know court procedure. Yes you may have to go to court twice once for filing and once for evidence there is no escape from that. For increasing alimony Police cannot give you a by help and if her parents file case you need to get anticipatory bail from court.

Regarding alimony better mention that one property is going to her name. Without paying taxes you cannot expect property to be transferred to her name. Court decree won't help for transfer of property you are bound to pay taxes as per law. For jointly owned property if she's ready to relinquish her right you can get property transferred to your name. Or you need to fIle a suit for property. If she dies property will go to her daughter or if she remarried property won't come to you it will be her property once it is registered.

Make property in daughters name and make your wife as guardian so that she cannot misuse property. If she files maintenance case you are bound to maintain wife and children.

Mention visitation rights conditions in MCD terms if she objects you need to fIle a suit seeking visitation rights.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

You are planning for dissolution of your marriage with her by mutual consent divorce.

If she agrees then you can draft the terms including sharing of property, monthly maintenance or one time alimony settlement for both spouse and the child, the child custody and visitation rights and timetable, duration and venue for visitation, taking the child to abroad on vacation etc.

All such things can be discussed either between you both or involving lawyers from both sides or some elders from both sides.

Once the entire issues have been discussed and decided on mutually agreed conditions, the same may be reduced to writing and attached as memorandum of understanding to the divorce petition.

The court will draw a decree of divorce making a mention about this MOU, which shall complete the divorce process and peaceful dissolution of marriage.

If the separation is more than one year and there are no possibilities for reunion, an affidavit to this effect may be submitted jointly before court seeking to waive the cooling of period of6 months.

T Kalaiselvan
Advocate, Vellore
78113 Answers
1543 Consultations

5.0 on 5.0

1. It is always advisable to go through a lawyer.

2. No, no witnesses required.

3. Filing per se does not require more than 30 mins- 1 hour.

4. Until recently, the Mumbai Family Court had reduced the appearances of the parties upto 2 times. Now court has again made it 3 times i.e. one at the tile of filing, one 10-15 days later for the first hearing and thereafter directly after 6 months.

5. Yes you can appoint a POA. You can also appear through video-conferencing.

6 & 7. Depends on the facts of the case.

8 & 9. The transfer of property is to be done through a Deed of transfer/ gift/ relinquishment during the 6 months, before the Divorce is granted. Decree of Divorce would not suffice. You will have to do the registration through the due process of law.

10. Mention a clause to that effect in the Consent Terms and do the necessary paperwork.

11 & 12. Depends on who is the guardian and other facts.

13. Depends on what is decided between the both of you. However it is never advisable to transfer a property in the name of the child.

14. The Consent terms shall specify the same. Normally, it is from day one.

15 & 16. Everything needs to be specified. Full and specific details of access have to be specified. Do not leave anything to the wishes and convenience of the child. In mutual Consent Petitions, everything is as per the consensus of the parties so normal visitation process will not apply.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

- Get this done through a lawyer.

- No witnesses required at the time of filing a divorce.

-Filing takes just a day. Preparing a divorce petition (mutual consent) may take 1-2 days.

-No your appearance is not required multiple times. Max. a couple of visits will be required. Your lawyer would let you know before hand.

- If it is impossible for you to physically appear before the Court, you may appoint a POA.

- 6 months is mandatory unless the cooling period is waived off by the Court. You can make an application before the court to waive off the cooling period,

- No protection is needed because there is no automatic arrest anymore in matrimonial cases.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

You need to approach through advocate.

Yes you need to be present during filing.

No you need to be present on atleast filing counselling and final date. No poa. six months time is waived in exceptional circumstances not every time.

It generally takes a single day for filing if all Doc are proper. No police interference required. Visitation rights can be mutually decided but if there is a clash then Court will decide the same

All property details and ownership can be decided by filing consent terms in court. You need to complete registration process outside court. No procedure to avoid stamp duty or Registration in transfering property. You can decide all your mutual terms in advance before approaching court.

Prashant Nayak
Advocate, Mumbai
27278 Answers
88 Consultations

4.4 on 5.0

1. Approach the lawyer for divorce, it will take 2 days to file the same. An application for waiving off the 6 month period can be moved. POA will not work, you will have to appear on all the three dates.

2. You should complete all the formalities before the 6 month, start paying maintenance from the date of filing the petition. Let the PPF be there on the name of the child and get the name of wife removed from the other property.

3. As per the mutual agreement you may mention the details about the visitation right.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Yes you can give the pre condition thin in writing. You will have to give such statement in writing in order to convince her, only give the statement in writing if you are willing to do the same.

2.you should move to your parents house and not live together.

If you two have consent for MC then there is no point of pointing out her faults, you two at this stage should just agree for mutually agreeable conditions and file the MC in the court.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Don’t give anything in writing at present

2) the consent terms would contain clauses as to settlement arrived at

3)cancel ATM card used by your BIL

4) you ha ve to take a call for changing the house

5) take your employer in confidence about problems being faced in your married life

6) better to stay separate on your arrival in India

Ajay Sethi
Advocate, Mumbai
87955 Answers
6207 Consultations

5.0 on 5.0

1. Donot give her anything in writing if it contrary your prejudice your rights, Better you assure her that on reaching India at file joint petion you will make an agreement and MOU for joint petition for MCD and all her condition can be incorporated in it,

2. Make an agreement at time of filing of MCD and mention that on divorce you shall give these all things to her. Things on which you both agree.

3.You have to bargain with her and make settlement suiting you both since you need divorce you have to accept her some conditions but donot accept some unreasonable condition which is burden on you.

Stay separately in case of divorce you need to handle your own house hold let her do what she want.

5. Cancel the atm card requesting bank (block it)

6 You have to handle you employer and in advance make him aware of your matrimonial problem and assure him that this wont effect work.

7.stay separate .

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. If she wants you to assure you to fulfill hr condition whe she may set even before giving divorce or coming to India, you may analyse the situation and take decision.

2. The property and monthly maintenance aspects if decided as a condition for divorce, you may enter into a MOU accordingly.

3. You are not obliged to accept her unreasonable demands or conditions, it should not be at the cost of harming your interests.

4. no commernts

5. You send a legal notice to him demanding the money swiped by him and also to return the ATM card or to face police action for theft and cheating.

6. You can warn her about it and also inform your employer about her such steps in advance and make it clear that she is not having any right to interfere in your employment, your employer should strictly give a notice to her warning her from indulging in such illegal activities.

7. You can decide to stay away from her to avoid any false cases that she maybe planning to foist on you.

T Kalaiselvan
Advocate, Vellore
78113 Answers
1543 Consultations

5.0 on 5.0

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