• Mutual Divorce MOU

Tomorrow is the second hearing (second date after 6 months waiting period of first date) of my mutual divorce. My advocate has not prepared any MOU mentioning that the parties have no financial claim or legal dispute/allegation. It's not mentioned in any point of the second motion document also. 

Want to know if having a MOU is that much important/necessary to be safe? Signing and granting of mutual divorce itself is not tantamount of having any dispute?

NOTE: Verbally there have been no claim from the wife's side till today from the day of first motion of mutual divorce.
Asked 13 days ago in Family Law
Religion: Hindu

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15 Answers

All the terms which you wished to mention in MOU must had to be stated in your mutual divorce petition.  If you have done so them MOU is no more required.  

If it's not there in the petition then MOU wouldn't cure the mistake and you are in no where. 

Devajyoti Barman
Advocate, Kolkata
21802 Answers
318 Consultations

5.0 on 5.0

firstly many lawyers do not guide their clients properly, such MOU's separately have no value, the MOU should have been a part of the petition as an Annexure.

yes the point of claim may arise after divorce also. If you want detailed discussion let me know.

Aveek Bose
Advocate, Kolkata
1221 Answers
9 Consultations

4.7 on 5.0

It's always better to put the same in writing before the court in form of consent terms for future good

Prashant Nayak
Advocate, Mumbai
22643 Answers
49 Consultations

4.4 on 5.0

Hello,

  1. It is mandatory that you and your wife file Claim Affidavits stating whatever are the terms of your mutual consent divorce. One of the clauses ought to be stating that there's no claim of any nature against each other now or in the future.
  2. There's no MOU outside the Affidavit and what you agree is binding on both of you and is irreversible once the court allows your petition for divorce and divorce is decreed. Mutual consent divorce ipso facto does not tantamount to having no dispute and therefore specific mention that disputes have been resolved with the decision to dissolve the marriage need to be there.
  3. All things need to be in writing on record and be submitted in court.

S J Mathew
Advocate, Mumbai
3084 Answers
113 Consultations

5.0 on 5.0

Both parties are required to file affidavits at time of second motion 

 

2) consent terms for mutual consent divorce are enclosed to divorce petition 

 

3) it is necessary to have consent terms which mention alimony if any payable to wife 

Ajay Sethi
Advocate, Mumbai
79752 Answers
4812 Consultations

5.0 on 5.0

Law is clear on this issue. But some ambiguity revolves around it because of application of principle of law by court while deciding the validity of terms of any MOU. 

MOU is a private contract and can not override the object of law set out as public policy. 

So any clause in a private contract or consent terms providing to the contrary to the object of helping the weak,  would be against public policy. 

So in light of the above MOU in any mutual consent divorce does have limited force of law where its terms are contrary to any public policy set out in any statute. 

In short MOU can not override any statutory provisions. 

So if you go with an MOU where your wife give up her right to claim maintenance , it would be treated as contrary to public policy. In fact even after giving consent to forego her legal rights to claim maintenance,  law does not accept this as a complete bar to take remedies under law in future. 

So an wife can claim maintenance under Sec 125 even she has earlier gave her consent not to claim maintenance. 

Another point to note that law also provide that if after taking any benefits in respect to any agreement or consent, one withdraws from his her position, then everything must be restored to the earlier position. Suppose you paid some lumpsum amount for not claiming any maintenance in future and afterwards your wife claim maintenance, then the payment received by her must be returned along with any other benefits in respect to the said consent or agreement. 

Hope this will clear the issue of validity of MOU. 

 

Kallol Majumdar
Advocate, Kolkata
2788 Answers
4 Consultations

5.0 on 5.0

Whatever is in writing shall stand at your rescue in case of adversity. It is better for you to get the MOU drafted, signed and agreed by and between you and your wife. In absence of an MOU, there can't be any evidence to corroborate your statement for divorce with mutual consent. 

It is advisable and a pre-requisite to draft and execute an MOU for moving 13(b) application ahead. 

 

Greetings for the day. 

Pooja Ashar
Advocate, Ahmedabad
131 Answers

5.0 on 5.0

Dear sir,

 

Please ask your Advocate to prepare a MOU, seek a short date from the court and get the matter settled once for all. 

If not, you'll be risking more litigations relating to your relationship. For eg. Your wife can file a petition claiming maintenance and you'll not have anything to show that you had settled this issue. 

Agam Sharma
Advocate, New Delhi
585 Answers
4 Consultations

5.0 on 5.0

Its important to note that whatever TERM OF CONSENT has been decided between the parties has to be put on record in the petition/documents. It has to be clearly mentioned in writing without which there would be problems in the future.

Even if there is verbally no claim from the wife's side still it has to be mentioned in writing about the same.

Sayyed Parvez
Advocate, Navi Mumbai
22 Answers
4 Consultations

4.9 on 5.0

In the absence of any such MOU from either side, it would be better that you may make a mention in the evidence affidavit itself about the disclaimer clause including the exchange of each other's articles with each other. 

Once a mention is made in the affidavit to be filed by both the parties in this regard, the matter of concern will be recorded in the judgment subsequently which is sufficient

T Kalaiselvan
Advocate, Vellore
69780 Answers
953 Consultations

5.0 on 5.0

Verbal agreement is no agreement at all and can be challenged in a court. An MOU is very important and it clearly spells out the rights and liabilities of the parties.

Rahul Mishra
Advocate, Lucknow
11632 Answers
21 Consultations

5.0 on 5.0

1. You have already jointly filed the MCD petition.

 

2. Both of you shall now have yo file the evidence in the form of affidavit strictly in consonance with the MCD already filed by you.

 

3. It is generally mentioned in the MCD petition that there is no dispute, claim, grievance against each other with out which no MCD will be decreed.

Krishna Kishore Ganguly
Advocate, Kolkata
24912 Answers
707 Consultations

5.0 on 5.0

Dear sir,

I would suggest you to have a written consent rather verbally do please enter into divorce agreement which will hold a legal right on both the parties for future understanding!!

Ayesha Sultana
Advocate, Bangalore
282 Answers
1 Consultation

Not rated

- If there is no claim left by the second party i.e. wife , then it should be mentioned in the joint petition of second motion , and a MOU is not required. 

- However, at the time of statement , you can pray with the court to mention the same in the divorce decree. 

Mohammed Shahzad
Advocate, Delhi
5691 Answers
55 Consultations

5.0 on 5.0

Kindly go through your main petition for divorce. It should have a clause mentioning your concern. It is a common practice to include the same in the main petition for divorce. 

 

And in case your lawyer has missed the same. You can ask your lawyer to prepare a document: consent terms to be filed in court and file the same in the concerned court along with both Petitioners signatures i.e. husband and wife.

 

This consent terms can include any other clarifications from future point of view as well, which can be mutually discussed prior to filing the document in Court.

Salome R Dias
Advocate, Vasai Virar
15 Answers

Not rated

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