How to file for Divorce: step by step procedure


How to file for Divorce: step by step procedure

In filing a divorce petition the spouses go through anxiety, anguish and struggle because it is an uncertain process. It involves extensive research so that it takes place in an unruffled manner and the result is satisfactory for the party.

This guide aims to tell you how a married couple, whose marriage is solemnised under Hindu Marriage Act 1955, can file for divorce.

If things between you and your spouse are not good and you are facing difficulties, and you or both of you have decided to part your ways legally then you can file for a divorce under Hindu Marriage Act, 1955.

If you both agree mutually:

Section 13B of the Hindu Marriage Act, 1955 covers the provision of mutual consent divorce.

Requirements for filing mutual divorce petition:

Firstly, a petition for dissolution of marriage for a decree of divorce may be presented to the family court by both the spouses,

On the ground that they have been living separately for a period of one year or more, or else stating that they have not been able to live together and they have mutually agreed to dissolve the marriage.

How long does it take to get a mutual divorce when both the parties agree:

After t you and your spouse have filed the petition for divorce, you and your spouse have to wait for six months and not more than 18 months from the date of presentation of divorce petition in the family court, provided that the petition is not withdrawn in the meantime.

Related Post: Divorce by Mutual Consent in India

If the court is satisfied, after hearing the parties, that the allegation in the petition is true, it can pass a decree of divorce declaring the marriage to be dissolved.

What is cooling off period :

The six months period wait after filing the mutual divorce petition is termed as ‘cooling off period’.

After the recent supreme court verdict the six months “cooling off” can be waived off if all efforts for mediation and conciliation to reunite the parties had failed. The waiving off can be considered if the parties had already lived separately for at least a year. It said parties can file waiver application just one week after divorce petition is filed and the court will take a call on waiving off the period.

The court clarified that the period mentioned in Section 13B(2) is not mandatory but directory,  and that it will be open to the court to exercise its discretion in the facts and circumstances of each case where there was no possibility of parties resuming cohabitation and there were chances of alternative rehabilitation.

Therefore, the cooling off period in cases where the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties and the waiting period will only prolong their sufferings, and hence it can be waived off if the court deems fit so.

If you agree but the other party is not ready:

If your marriage is solemnized under the Hindu Marriage Act, 1955, you have nine grounds for divorce provided in Section 13 of the Act under which you can file your petition to divorce your partner.

You can file for divorce:

a) If he / she has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive;

b) If he / she has after the marriage had voluntary sexual intercourse with any other person;

c) If he / she is treating you cruelly;

d) If he / she has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition;

e) If he / she has ceased to be a Hindu by conversion to another religion;

f) If he / she is suffering from incurably of unsound mind or has been continuously or intermittently from a mental disorder that you cannot reasonably be expected to live with such a person;

g) If your husband / wife is suffering from a virulent and incurable form of leprosy;

h) If he / she is suffering from venereal disease in a communicable form;

i) If your husband / wife has renounced the world by entering any religious order;

How long it takes to get a divorce where you agree but the other party is not ready?

It depends upon the complexities of the situation, there is not fixed time under which you can get the decree for divorce from the court.

Other grounds available for wife to file for divorce:

The aforementioned grounds are available for both spouses; however, there are some additional grounds that are available only for wife; for example, if your husband has been found guilty of rape, sodomy or bestiality, you can ask for divorce.

But if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want a divorce, you can do so but only before attaining the age of 18.

Where can you file the divorce petition:

The divorce petition may be filed at the family court which has jurisdiction over your matrimonial home, i.e. the home where you stay / last lived as married spouse after your wedding or at the family court at the place where the marriage had taken place. Women can file the petition either in the family court that has jurisdiction over the place the matrimonial home is located or the family court of the locality where she is residing at the time of filing of the petition.

Do you need a lawyer to file your divorce petition:

Regardless of the type of divorce you seek (mutual or contested), it’s primarily most important to have a  lawyer who can represent / guide you with the trail of the divorce procedure.

Have a consultation with an experienced and well-versed divorce lawyer. There have been instances where even seemingly straightforward divorces have been complicated, and only a divorce lawyer can answer specific questions about your circumstances. Even if you end up representing yourself, a one-hour consultation with a lawyer will help you prepare better.

Here are some tips before you fix your consultation:

– Make list goals and desired outcome and discuss it.

– Keep all your documentation of your assets and debts bought jointly.

– Prepare your questions list that is specific to your situation and ask the lawyer.

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