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Comparison Between Mutual Consent and Contested Divorce

Adv Bindu Dubey > Family Court Advocates  > Comparison Between Mutual Consent and Contested Divorce

Comparison Between Mutual Consent and Contested Divorce

Couple is fighting over contested or mutual divorce

Key Differences between ‘Mutual Consent’ and ‘Contested’ Divorce

Marriages are said to be the strongest bond that keeps a couple committed and devoted towards each other in a marriage. Many times due to several unfortunate scenarios when a marriage doesn’t seem to be working well, it’s better for the spouses to get separated. In India, the law provides two ways to get divorced – ‘Mutual consent’ and ‘Contested’ divorce.

Before we discuss the difference between both the ways of taking divorce, let’s get to know about the types of divorce first.

Mutual Consent Divorce:

In this type of divorce, both the partners mutually decide to end their marriage without having the need to fight for proving their sides and getting something in the court. This type of divorce is also said to be uncontested divorce as the husband and the wife jointly decide about all the terms of divorce and related formalities like children’s custody, alimony/maintenance, and division of movable and immovable property.

Contested Divorce:

In this kind of divorce, one side wants to file for the divorce but the other side does not consent to this divorce. As is very clear from the name itself, one party has to contest for the divorce in the court against the other party.

Let’s compare both the types of divorce depending upon certain criteria:

Comparison between ‘Mutual Consent’ and ‘Contested’ divorce:

Type of Divorce Petition:

In case of mutual consent divorce, both the partners file a joint divorce petition whereas in contested divorce, a one-sided divorce petition is filed by one spouse against the other in the court.

Court proceedings:

The divorce proceedings in a mutual consent divorce include –

  • Filing a divorce petition (First motion)
  • Cooling off period
  • Filing Second Motion
  • Divorce decree

The divorce proceedings in a contested divorce include –

  • Filing divorce petition
  • Court notice to the other party
  • Statement recording
  • Examination and cross-examination of evidence and witnesses
  • Divorce decree

Grounds for Divorce

For mutual consent divorce, there is no necessity of presenting a ground other than the relationship between the spouses being strained beyond repair and hence the need to put an end to their marriage and endless sufferings. Whereas in case of a contested divorce in India, there can be several grounds like mental cruelty, adultery, physical cruelty, mental illness, renunciation of the world, conversion of religion, venereal disease of communicable form, the spouse not being alive for more than 7 years, etc. Any of these grounds apart from any other suitable ground need to be included in the divorce petition on the basis of which the divorce is contested by one spouse against the other.

Cooling off period:

The couple gets a cooling-off period of 6 months to reconsider their decision of ending their marriage and reconcile in case of mutual divorce in India. In the case of contested divorce, there is no such concept of a cooling-off period.

Time frame of the entire legal proceeding for divorce:

Usually in case of a mutual consent divorce, the divorce decree is granted in duration of 8 to 10 months whereas in case of a contested divorce, the entire proceedings can take a much longer duration.

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