In India, typically, a married couple can get divorced by obtaining a decree from Court, which can be either by mutual consent of the couple or by filing a contested Petition for divorce. In a contested litigation, apart from divorce, disputes between the spouses over alimony, custody, child support, co-parenting, etc. also get decided by the Court. The current article focuses on how these issues are dealt with in cases of divorce by mutual consent.
When a married couple wants to part ways amicably and can come to agreement regarding issues like alimony / maintenance, child custody, visitation rights, child support etc., they can apply for divorce via mutual consent by filing a joint Petition in the relevant Court along with their agreement regarding the aforesaid issues (known as Consent Terms). The Court has laid down procedure to be followed by the couple to ascertain the genuineness of the Petition and intentions of the Parties. Once this procedure is completed, the Court will dissolve the marriage by issuing a decree of divorce on terms and conditions recorded in the Consent Terms. Therefore, it is vital that the Consent Terms are drafted clearly, comprehensibly and exhaustively, so that no scope is left for any misunderstanding, confusion, manipulation or omission. If there is a breach by either of the Parties regarding the compliance of such Consent Terms, the aggrieved party can approach the Court by initiating contempt proceedings and/or execution proceedings.
Alimony / maintenance: These terms are synonymous and typically refer to the periodic and/or lumpsum amount to be paid by the husband to the wife for her sustenance post-divorce (except in the case of marriages under the Hindu Marriage Act, 1955, wherein the spouse who earns more is liable to provide sustenance to the other spouse who may be dependent on the former). The guiding factor for determining the alimony amount is that the wife to enjoy the same standard of living which she enjoyed during her marriage. The couple can agree not to have any alimony or maneuver and arrive at an amount which suits and aligns with their individual circumstances and needs. Agreement regarding the amount, tranches of payment, mode of payment should be mentioned clearly in the Consent Terms.
Custody, Access / Visitation: Children often bear the maximum brunt of a divorce if the parents are unable to co-parent in a mature, sensible and responsible manner. For the sake of ensuring a healthy and wholesome upbringing of children, it is vital that reasonable and practical terms regarding custody, guardianship, access / visitation rights and child support are arrived at.
Broadly speaking, child’s custody is of two types, viz. physical custody and legal custody. Physical custody means whom the child will reside with, and legal custody means who will be responsible and entitled to taking important and major decisions affecting the child. Parents can mutually agree to jointly share their child’s custody (physical and/or legal custody) in a pre-determined manner, or they can agree that either of them will have such custody. If one parent retains the child’s physical custody, then the other parent will have access/ visitation rights, thus enabling the child to spend time with the other parent. It is essential to clearly record the arrangement regarding custody and access, including but not limited to frequency of access, place of access, travel during access time etc. in the Consent Terms. While mutual consent allows flexibility to parents to mutually decide their respective rights and obligations towards their children, it should not be at the cost of children’s welfare.
Child support: This is another important factor to be considered and recorded in the Consent Terms. A child’s financial needs include primary expenses like food, shelter, education, etc., and other additional expenses like those on daily allowances, extra-curricular activities, travel, vacation, medical, etc. All such factors need to be kept in mind while deciding the quantum of child support. Earlier, typically the father was singularly responsible for providing for the children. However, in today’s world, where the wife also has an independent income of her own, it is not uncommon for both the parents to financially contribute towards the child support. In any case, it is immensely important to clearly record the parent who shall be responsible for paying child support, its quantum, distribution, the mode and timelines of payment, etc. in the Consent Terms.
A divorce is an emotionally challenging time for a couple and their immediate family members. A protracted litigation regarding the same only adds to the emotional exhaustion and also results in additional financial drain. A divorce by mutual consent can save a lot of emotional and financial stress for a couple, thereby making the process that much less taxing and traumatic. A well deliberated and well drafted Consent Terms can make the post-divorce journey of two individuals smoother and their co-parenting easier.
Shaili Muzoomdar
Advocate Specializing in Divorce and Matrimonial Laws