• Mutual consent divorce - legal queries

Hello All,

I have a few questions regarding Divorce by mutual consent

1. Can one of the parties withdraw his/her consent after filing the first petition for Divorce on mutual consent within 18 months? What are the implications of the same to the other party?
2. What all should betaken care during creating the affedavitt for the petition? are are the points to be mentioned.
3. My work requires me to travel out of country n short or long term basis, will filing for divorce have any implications on this part as well?
4.  Is there any way to make sure that after filing divorce by mutual consent, either party doesnot withdraw the same? f not, what al should be taken care while drafting the petition.

Thanks!
Asked 1 year ago in Family Law from Patna, Bihar
Religion: Hindu
1. Yes, any of the parties can withdraw the consent at any point of time and there is adverse consequences on the withdrawing party.
2. Whatever you mention, you can force a party from withdrawing the consent during final motion.
3. Not at all.
4. It can not be done. To ensure minimum loss in the vent of withdrawal of consent do not part with settlement money or exchange of articles till the date of final motion.
Devajyoti Barman
Advocate, Kolkata
5179 Answers
54 Consultations
4.9 on 5.0
1) yes petition for mutual consent can be withdrawn by one of the parties 

2) on consent being withdrawn petition would be dismissed

3) in consent terms issues relating to child custody .return of streedhan , maintenance have to be incorporated 

4) you have to attend court at time of filing petition , first motion and second motion 

5) you cannot force other party to agree for divorce by mutual consent 

6) the object of cooling period of 6 months is to encourage reconciliation and save the marriage . Any party can withdraw consent 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:
1. Can one of the parties withdraw his/her consent after filing the first petition for Divorce on mutual consent within 18 months? What are the implications of the same to the other party?
Opinion: parties can be withdraw their consent at any time before final order of the court. Divorce will not be happen on mutual consent.

2. What all should betaken care during creating the affedavitt for the petition? are are the points to be mentioned.
Opinion: executed a mou before filing the divorce petition in which all the terms and conditions should be mentioned.

3. My work requires me to travel out of country n short or long term basis, will filing for divorce have any implications on this part as well?

Opinion: it can be handled by advocate.

4.  Is there any way to make sure that after filing divorce by mutual consent, either party doesnot withdraw the same? f not, what al should be taken care while drafting the petition.
Opinion: execution of Mou with all the terms and conditions is best option.
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
1. Can one of the parties withdraw his/her consent after filing the first petition for Divorce on mutual consent within 18 months? What are the implications of the same to the other party?
If either of the party withdraws the consent, the petition will be dismissed by court. 

2. What all should betaken care during creating the affedavitt for the petition? are are the points to be mentioned.
The terms and conditions mutually agreed are to be noted in a separate memorandum of understanding and they cannot be incorporated in the affidavit.  In affidavit only the details regarding the marriage solemnisation, date, and consent by each other for dissolution to be incorporated. 

3. My work requires me to travel out of country n short or long term basis, will filing for divorce have any implications on this part as well?
No this has got nothing to do with it until you are not absent or not being represented properly by your advocate during your absence on the date of hearing before court. 

4.  Is there any way to make sure that after filing divorce by mutual consent, either party doesnot withdraw the same? f not, what al should be taken care while drafting the petition.
One cannot force his decision on other, hence one cannot make sure the other not withdrawing the consent at a later stage.  These are mutually agreed issues having no legal binding on the decisions take by individuals except the court will go by law. 
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
1. Either party is at liberty to withdraw his/her consent before the final hearing, which will inevitably result in the court dismissing the case.

2. The terms and conditions of settlement will have to be reduced to writing in the affidavit.

3. You can execute a POA in favour of any of your blood relatives to attend the court along with your lawyer.

4. You cannot stop your spouse from withdrawing the consent. 
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
1. The said party need not withdraw the petition. He/she can appear on the 2nd motion and tell the magistrate that he is not willing for the said MCD. He/she can also refuse to appear on the date of the 2nd motion and in that case the case will be deferred and finally rejected after 18 months,

2. This is a specialised matter. The MCD petition is required to be drafted carefully by a lawyer. There should be a MOU agreed and signed by both the parties,

3. If it is divorce and not mutual consent divorce, you can execute a POA in favour or your representative who will represent you in contesting the divorce suit,

4. There can not be any clause in the MCD affirming that  none of the parties will withdraw or change his/her mind during the 2nd motion. In fact 6 months time is allowed to see if any party or both the parties is changing his/her/their mind.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0

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