Difference Between Mutual Consent And Contested Divorce

Published on 27 Nov 2018 by Shivi

Ending a marriage is one of the most difficult and testing decision in a person's life that needs to handled in the most delicate and systematic way. Divorce in India can become unmanageable if you don’t have the complete knowledge about the types and divorce procedure. Divorce laws in India categorise divorce as mutual consent divorce and contested divorce. The facts and circumstances of a divorcing couple determine which divorce type would be applicable to them.

People often get confused between mutual divorce and contested divorce and end up with unnecessary legal bills! Here’s a comprehensive guide to the difference between a mutual consent divorce and contested divorce.

Meaning Of Mutual Consent Divorce

A divorce by mutual consent is a kind of divorce whereby both the husband and wife mutually agree to end their marriage and decide the terms and conditions of their divorce amicably. Mutual consent divorce is also called an uncontested divorce as the husband and wife file a joint divorce petition without the need to contest it in the court.

Meaning Of Contested Divorce

A contested divorce is whereby one spouse files a divorce petition against the other and the other spouse contests it in court. A contested divorce is also known as one-sided divorce as a divorce petition is filed by one spouse to end the marriage and is contested by the other before the court.

Differences Between Mutual Consent Divorce And Contested Divorce

Ground For Divorce

Under the Indian divorce law, establishing a ground for divorce is not necessary for a mutual consent divorce, but a petition for contested divorce can only be filed on a valid ground from divorce. Reasons for divorce in India include adultery by the spouse, mental or physical cruelty, desertion, conversion of religion, renunciation of the world, mental illness, leprosy, venereal disease of communicable form, the spouse is not heard being alive for 7 years, etc. Section 13 of the Hindu Marriage Act, 1955 lays down the valid reasons for divorce in India.

Maintenance/Alimony, Child Custody And Division Of Property

In a divorce by mutual consent, the formalities relating to maintenance/alimony, child custody and division of property are decided by the husband and wife pre-hand. However, the issues relating to alimony/maintenance, child custody and division of property are contested like the divorce petition. The divorce lawyer in India files separate petitions to deal with these issues in case of a contested divorce.

Cooling Off Period

There is no concept of a cooling off period in a contested divorce as there are no chances of reconciliation between the divorcing couple. However, there is a cooling off period of 6 months in a mutual consent divorce to give the couple some time to reconsider their decision. Under the new divorce law in India, the cooling period may be waived off by the court if it thinks that reconciliation is impossible and a cooling period will only increase their suffering.

READ: FAQs On Mutual Consent Divorce

Condition On Filing A Divorce Petition

Under the Hindu Marriage Act, a mutual divorce petition can only be filed after at least one year has passed from the date of marriage. However, this condition is generally ignored by the court in case of contested divorce if the marriage is bringing hardship on a person. The divorce advocate in India needs to file a leave petition with the court to bypass this condition in a contested divorce.

Filing A Divorce Petition

In case of mutual divorce, a joint petition is filed by the husband and wife with the court in conjunction. However, in case of contested divorce, the husband or wife files a one-sided divorce petition against the other and the other spouse contests the divorce petition before the court.

Time Taken In Divorce Process

A mutual divorce is considered as the fastest way to get a divorce in India and a divorce decree is usually passed in 1-8 months by the court, however, a contested divorce may take up to 1-2 years as there are more formalities involved in a contested divorce as compared to a mutual consent divorce.

Legistify connects you with top divorce advocates in India who can assist you in filing a mutual consent divorce or a contested divorce online in India, whichever is applicable to your matter. To get connected with divorce attorneys near you, give us a call at 846-883-3013 or send us an email at [email protected].

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