Seeking procedure for mutual divorce in case of inter religion marriage. I am a Muslim & she is Hindu. Have a valid marriage certificate & my name is added to her passport. We are currently living in Australia in the same house but in different rooms. Also seeking advice if a signed declaration with signatures of 2 witnesses made overseas hold grounds in court as proof? How fast the divorce can be finalized?
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You must have been married under provisions of special marriage act
2) you can file for divorce by mutual consent in India in city wherein you were married or stayed together after marriage
3) mention that you have been staying separate for period of one year
4) enclose consent terms to divorce petition
5) mutual consent divorce takes 6 months in India
Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. 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.
Formalities to be complied with
(a) A petition is to be presented jointly by the parties to the marriage.
(b) The parties have been living separately for a period not less than one year.
(c) The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
(d) The parties have freely consented to the agreement of dissolution of marriage.
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.
you can file divorce under mutual consent divorce in India, where you reside after marriage.
If both spouses are agreed for Mutual divorce then you can file mutual divorce in Australia family court.
A foreign court divorce decree may be valid in India ONLY if the spouse had lived in that country and had consented to that country's jurisdiction.
1. It appears you have registered your marriage under Special Marriage Act.
2. If that is so then you will have to apply for divorce under the said court in the local court under mutual consent.
3. it does not take more than six months to get such divorce.
4. Since foreign divorce is not recognised in Indian court, it is advisable that you take such divorce in India only.
No such signed declaration is not valid. You need to file the divorce in court and seek decree
Hello,
if your marriage was solemnized under the provisions of special marriage act then you can take mutual divorce in US and that will be valid in India.
if you married as per Australian law then take divorce as per Australian law and the same will be valid in India.
regards
1. Have you married her under Special Marriage Act? If the answer is yes then you may file a petition for mutual consent divorce in the competent court in India which can be decreed in less than 6 months if an application is made and allowed for the waiver of cooling off period. The spouses have to either personally appear in the court to record their statement or execute a Special Power of Attorney in someone's favour to authorise him to appear on their behalf.
2. You are also free to file the petition for dissolution of marriage in Australia.
See for mutual divorce joint petition has to be filed before family court signed by both the parties and then the court records consent of both the parties in first motion after that cooling of period is given and a date after 6 months to record consent for second motion and finalise the divorce.
See for mutual divorce consent of parties is recorded in person a mere declaration won't do.
Divorce can take 8-9 months.
1. Under which Act did you register your marriage and where has it been registered?
2. If the marriage has been registered in India as per Special Marriage Act, then you shall have to jointly file Mutual Consent divorce petition before the Indian court which will be decided within 6 & 1/2 months from the date of its filing.
3. Both of you can get the MCD petition sent by your Indian Advocate and append both of your signatures on it to be notarised by the appropriate officer of your local Indian Consulate and despatched to your Indian Advocate to enable him to file the same.
4. Both of you shall have to personally appear before the Court on the day of the 2nd motion (after 6 months) to depose that both of you still want divorce.
Dear Sir,
The following information may kindly be read, it will helpful to you.
The divorce petition in the form of an affidavit, which is to be submitted to the family court. The two most crucial elements of a mutual divorce petition are maintenance and child custody. There is no specific law in India that prescribes the calculation of maintenance, which parties are left to decide upon. However, if no agreement is reached, it is the court that decides after analysis the obligations and finances of each party.
After the filing of the petition and recording the statement of both the parties, the court usually adjourns the matter for a period of 6 months. 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. During this period of six months, either party may withdraw the petition from the court, in which case no divorce will be granted.
If it is inconvenient for you to keep traveling to India for this purpose, a Vakalatnama or a Special Power of Attorney may be signed in favor of your divorce lawyer who can then represent you in your absence. However, you may still be required for evidence and cross-examination purposes.
Filing a case in a foreign court
Considering the convenience, the laws in India provide for the filing of a petition for annulment of a marriage registered in India. However, this divorce can only be of the nature of mutual consent. This is so because foreign laws on other grounds of divorce may differ (such as cruelty, irretrievable breakdown of marriage, fraud) and hence the Indian courts do not recognize a divorce decree if it is not granted on the basis of mutual consent.
Another aspect that needs to be kept in mind is that the marriage must be registered in India. If both husband and wife are Indian citizens but get married in Spain under Spanish law, then the Indian courts will have no jurisdiction. In this case, it is the Spanish law on divorce that will apply. However, if the marriage takes place in India and is registered under the Hindu Marriage Act or Special Marriage Act, only then would the Indian Court seek to intervene and recognize the grant of divorce by a foreign court.
As strange as this may sound, if you file a divorce petition in a foreign court and get a divorce on a ground other than mutual consent, you would be divorced in that country but still legally married in India.
If your marriage was registered under special marriage act then you can a petition under section 28 of the act.
28. Divorce by mutual consent.—
Sir
I will advise you to kindly apply for a divorce in Australia as you have the jurisdiction to file your mutual divorce in Australia as you both are residing there.
If a divorce is contested it will be legally binding on both the parties and this will not take much of your time.
1) If you're seeking Mutual Divorce in Australia than depends upon their local terms and conditions you much time it can take for MD process and that too is valid in the India.
