• Divorce by mutual consent

Me and my spouse have agreed on getting a divorce by mutual consent and would like to know the procedure to move forward. We currently reside in the US but were married in the Goa court in 2010, and were also later married in the church in Dubai in 2011. 
We recently had a child in April and we've agreed that the custody of the child will go to my spouse.
Asked 7 years ago in Family Law
Religion: Christian

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17 Answers

Since both of you are residing in USA you can file for divorce by mutual consent in USA 

 

2) divorce decree would be valid in India 

 

3) you can have divorce decree validated by family court in India under provisions of section 7 of family court act 

 

4) in alternative file for divorce in India 

 

5) enclose consent terms for custody of daughter , payment of alimony etc 

 

6) mutual consent divorce takes 6 months 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

If both parties are willing to apply for mutual divorce and are currently residing in the USA, you can apply for divorce in US. In USA the family law is governed by state laws, so please check the requirements for your state. Mutual divorce in USA is valid in India, so seperate divorce is not required. If one party does not agree to divorce, then the US divorce can be challenged in India, but I assume that is not the case with you. 

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

Dear Concerned, 

 

As you both stay in US , it is advisable to take a Mutual Divorce in US itself. As the said divorce will be through Mutual Consent the said decree will be  acceptable in India. It is better that all the terms of settlement are incorporated in the divorce proceedings in US. 

 

Best of luck  

Atulay Nehra
Advocate, Noida
1316 Answers
58 Consultations

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title so you can ;so file divorce in US. If his wife has accepted the authority of US court, it cannot be open to her to later question the authority of the US court.Decree of Divorce by a foreign Court is also valid in India if there is no challenge by the other party. If both of you go for mutual consent divorce, then it is recognised and valid in India.

 

Or

 

You can file a mutual divorce petition in Goa.

Steps in Court Procedure in Mutual Divorce petition in India.

In all there are two court appearances in a mutual divorce
1. First A joint petition signed by both parties is filed in court. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Honourable Court.
2. Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind)
3. Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.
4. Divorce decree will be granted as the Honourable Court may deem fit.

Latest Supreme Court ruling states that family courts were free to waive the statutory six-month period under the Hindu Marriage Act for considering divorce applications in cases where the parties were living separately for more than 18 months before filing the petition, efforts to reconcile differences had failed and claims of alimony and custody of children had been settled.

Ajay N S
Advocate, Ernakulam
4124 Answers
114 Consultations

1. It is not clear under which Act you had registered your marriage.

2. If it was made as per Christian rites and customs then you can apply for divorce under Indian Divorce Act.

3. The time taken is not more than six months .

4. You can include all the terms of the settlement including payment of alimony and custody in the petition for mutual divorce itself.

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

You can apply for divorce in Goa family court for the same. Depends under which Act you got married. You can also try divorce in US if both of you are presently residing there

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

Since you are taking a mutual consent divorce if you wish you can take same in US also . Further can file a declaration of same in India.

In your case the Indian court marriage is valid so if you are willing to come to India can file a divorce in India by mutual consent.

 

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

  1. As per the information mentioned in the present query, makes it clear that though you married in India then in Dubai, but now want divorce in US.
  2. There are two things/law point which is necessary for having the decree any sanctity in India are:-         

                 a. The husband and wife both should be there residing in the country where they are seeking divorce.

                  b. The ground of divorce should also be one of the ground recognised in India.

        3. Both the cases are fulfilled by you two in the present query, so please without any worry go for the divorce on good terms, and with the thinking of a good future to the child.

 

God Bless You...!

Sanjay Baniwal
Advocate, South Delhi
5477 Answers
13 Consultations

Hello,

mutual consent divorce taken in USA will be valid in India if you have lived for certain amount of time in US.

you may get in touch with a US attorney and file a case of mutual divorce.

let me know if you need any legal assistance in US.

regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

If you both spouse are agreed for mutual divorce then you can file Mutual Divorce in USA family court .

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

You will need to apply for Divorce by Mutual Consent under the Portuguese Law in Goa and after the Decree of Divorce is obtained, send that to the church in Dubai . You can spell out all details regarding the alimony, custody, access and maintenance of child in the terms of the Mutual consent Petition.  It is important to specifically mention all access details at the outset and not leave it to understanding and convenience. 

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

You may have to file a suit seeking dissolution of marriage by a decree of divorce on the grounds of mutual consent as per state laws of Goa.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Eventually need to go for the divorce if you're living in US in US Court Indian courts will take some time as soon as you get the divorce in US after that you can file a divorce petition in India and the grounds of divorce decree you have from US and mutual consent ground because even after the mutual consent current court will start proceeding after 6 month.

Sofa immediate winding up of the marriage you need you need to go for divorce petition in US.

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

Hello,

You both need to appear before the indian court and seek divorce.

Regards

Swarupananda Neogi
Advocate, Kolkata
2993 Answers
6 Consultations

1. You both can jpointly file a mutual consent divorce petition before the USA court after staying seperately for one year 

 

2. You both should atend the Court hearings and finally avail the decree of divorce.

 

3. After availing the decree of divorce, you both shall have to file an application before the local District Judge in India for getting the said  decree of divorce passed by the USA court validated in India.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

Dear Sir,

The following information may kindly be read:

What if the Couple is Not Living in India After Marriage?

If a Non-Resident Indian (NRI) married in India wants a mutual consent divorce, then he/she can do so by filing a petition in India or in the country where both of them are residing. The Indian law provides for this exception of filing a divorce in another country.

It says that a petition can be filed within the jurisdiction of the courts of which the parties to the marriage last resided.

The residence or the matrimonial home of the NRI couple will be a foreign country. Thus, the couple can file for a divorce petition either in India or in such foreign country.

Filing for Divorce in a Foreign Country

When a couple decides to file a divorce petition in a foreign country, they do so on the basis of the power given to them under the Indian law. The petition for mutual consent divorce will have to be made in accordance with the laws of the country in which the couple resides. The Indian laws will not apply to the foreign courts. The foreign court will then pass a decree recognizing the divorce in accordance with their procedure.

Will this Foreign Decree be Recognized by the Indian Courts?

The Indian courts do not recognize the decree passed by the foreign courts if the decree so made is inconclusive under Section 13 of the Civil Procedure Code, 1908.[2]

This means that the decree:

  1. Is not pronounced by a Court of competent jurisdiction.
  2. Has not been given on the merits of the case.
  3. Appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
  4. Was obtained opposed to the principles of natural justice.
  5. Has been obtained by fraud.
  6. Sustains a claim founded on a breach of any law in force in India.

 

Netravathi Kalaskar
Advocate, Bengaluru
4951 Answers
27 Consultations

Hello

       As you are a Christian the Christian law shall apply. You will have to present a petition in the court in Goa. You can also get divorced in the USA and obtain a decree but you have to come to India so as to execute the decree as the marriage was solemnized in India and you are Indian citizens.all the issues which have been settled between you have to be taken down in writing and a joint petition presented before the court.

Regards 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

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