• Mutual consent divorce

I am an Indian Expat living abroad. I wish to file for divorce by mutual consent. I wish to apply for the divorce in the country I am currently living in. What are the conditions that need to be met for me to apply for the divorce if any? esp. duration of living separately. Do we have to submit any evidence to support mutual consent divorce. After divorce I might have to move to another country or back to India with my child depending on the job and/or personal reasons. What do I have to do to ensure I can do that without any legal hassles.
Asked 2 years ago in Family Law from United States
Religion: Hindu
1) you can apply for divorce in USA for mutual consent 

2) you should be staying separate for period of 1 year before filing for divorce . 

3) divorce decree granted in USA would be valid in India as your partner  has participated in divorce proceedings and given his / her consent 

4) in the consent  terms it should be mentioned that you shall have the custody of the child 

5) you would be free to remarry without any hassles 
Ajay Sethi
Advocate, Mumbai
44243 Answers
2568 Consultations

5.0 on 5.0

1) you can file for divorce in Belgium if you are permanent resident of Belgium 

2) you can file for contested divorce on grounds recognised by Hindu marriage act 

3) you need not stay separate for 1 year for filing contested divorce . 

4)in the alternative file for divorce in India if your marriage has been solemnised in India 
Ajay Sethi
Advocate, Mumbai
44243 Answers
2568 Consultations

5.0 on 5.0

1. Unless you and your spouse are citizens of USA you should file for divorce in India and not US to preempt the possibility of your wife challenging the judgment of US court in an Indian court. The mutual divorce proceedings in India would be concluded in the same duration as in US. By filing for divorce in India you will be able to avoid another round of litigation.

2. The separation of 1 year is not required to file for mutual divorce.
Ashish Davessar
Advocate, Jaipur
22966 Answers
631 Consultations

5.0 on 5.0

1. Where does your wife live? Is she living n USA being separated from you?

2.If yes, then both of you can file a No-Fault divorce petition which is expected to be disposed of with in 3/4 months,

3. Decree of No-Fault Divorce granted in USA is treated as mutual consent divorce in India,

4. Please note that you shall have to part with 50% of your assets in USA,

5. If she is staying in India you both can file a mutual consent divorce in India which will be decreed within 6 & 1/2 months from the date of filing and in that case your property stays with you unless yiur wife puts some condition about it for her agreeing to sign the MCD petition.
Krishna Kishore Ganguly
Advocate, Kolkata
18121 Answers
438 Consultations

5.0 on 5.0

You can apply for annulment of marriage on acceptable grounds one being that some vital information about her was suppressed from you while obtaining yiur consent for your marriage and had the said act been known to you, you would never have agreed for the said marriage.
Krishna Kishore Ganguly
Advocate, Kolkata
18121 Answers
438 Consultations

5.0 on 5.0

The laws for dissolution of marriage by a decree of divorce in each country is different to each other.  For example in US, living separately for six months will be sufficient  to prove incompatibility and a reason for divorce on mutual consent. In countries like US it is divorce suit under which a post nuptial agreement has to be made especially by disclosing each other's economic background and other details.  Likewise, Belgium may have different set of rules in this regard.  However, a divorce by mutual consent in any country for a marriage solemnised as per India lawas, is recognised/acceptable in India.
You may revert with details of marriage so that you will get more proper opinions suiting to your case. 
T Kalaiselvan
Advocate, Vellore
34406 Answers
368 Consultations

5.0 on 5.0

The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved.
Under these circumstances a Divorce by Mutual consent can be filed.

Steps in Court Procedure (13 B)
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. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.
(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. 

(e) The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred. But in Sureshta Devi v Om Prakash it has been held that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.
(f) The court must be satisfied as to the averments in the petition after making inquiry and after hearing the parties which are initiated by a joint motion of the expiry of six months from presentation of the petition. The expression "after hearing the parties" appearing in sub-section (2) of section 28 of the Act does not require the presence of the parties before the court. Affidavit-evidence is sufficient for this purpose by virtue of section 40 of the Act which attracts the ­ Code of Civil Procedure 1908 and which provides in Order 19 for proof of any point by affidavits.

Foreign court decree of divorce or dissolution of marriage can be valid in India provided such decree is according to the provision of law in India as provided under section 13 of the Civil Procedure Code and Principle of law as laid down by the Indian courts. 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.Under Section 13(e), Civil Procedure Code, the foreign judgment is open to challenge  "where it has been obtained by fraud". Fraud as to the merits of the respondent's case may be ignored and his allegation that he and his wife "have lived separate and apart for more than three (3) consecutive years without cohabitation and that there is no possibility of a reconciliation" may be assumed to be true. But fraud as to the jurisdiction of the foreign  court is a vital consideration in the recognition of the decree passed by that court. 
Ajay N S
Advocate, Ernakulam
2756 Answers
44 Consultations

5.0 on 5.0

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