NRI Mutual Consent Divorce: What You Need to Know

NRI Mutual Consent Divorce: What You Need to Know

The dissolution of a marriage can be a complicated process—even more so if you’re an NRI couple. The confusion regarding where to file your petition and how to divide joint properties can be too much for people who are already distressed about the situation. So, can you make this process a little easier?

Yes. Read on for a simple explanation of the complicated process.

Not only does divorce entail unnecessary social stigma, but it also exhausts those going through it. A mutual consent divorce is definitely a notch easier to get through. The splitting of assets and custody of children is relatively easier to achieve as desired when both the partners have consented to the divorce.

Any married couple considering a divorce will have to comply with the jurisdiction of the courts. What does that mean for you? Well, the court where you file your divorce petition must possess the power to give a valid decree regarding your divorce.

It is important to make note of the religious laws that govern divorce proceedings and jurisdiction of courts:

  • The Hindu Marriage Act, 1955: For Hindu, Buddhist, Jain, and Sikh couples
  • The Dissolution of Muslim Marriages Act, 1939: For Muslim couples
  • The Special Marriage Act, 1954: For Christian, Parsi, etc. and inter-religious couples

Certain considerations remain consistent, irrespective of the law and jurisdictions of the court. These considerations are used to decide which court will be the most suitable for the divorce petition. As long as the court falls under one of these categories, the petition may be filed there:

  1. The region where the marriage was solemnized
  2. The region where the couple resided together for the last time
  3. The region where one of the two parties is residing while filing the petition

Where can NRI couples file for divorce?

NRI couples that were married in India may file for divorce in Indian courts as per the aforementioned prerequisites. However, if you wish to file for divorce outside India (in the place of your residence), you may do so, as well.

India allows you to file for divorce in a region where “you last resided as a couple”. Hence, a court in your country of residence can be where you file for divorce if that was your matrimonial home or last residence together.

Legal requirements to consider when filing for divorce in a foreign country

Indian law gives you the power to file for divorce in a foreign court. However, the divorce proceedings will not take place according to Indian laws. Your petition will be submitted in accordance with the laws of your country of residence. The proceedings will also take place according to the country’s laws.

Section 13 of the Civil Procedure Court, 1908 plays a crucial role in such a situation. As per this law, the foreign decree will be declared null and void by Indian courts if:

  • It has been obtained fraudulently
  • It has not been granted based on the merits of the case
  • It appears to have been concluded on an incorrect view of international law
  • It refuses to recognize the laws of India in cases where they’re applicable
  • It has not been pronounced by a court of competent jurisdiction
  • It goes against the principle of natural justice
  • It breaches an Indian law

The decree must also have provisions about the property of the partners, child custody, alimony, etc.

The Supreme Court of India has previously said, “The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.”

An exception is made for the parties that consent to their divorce proceedings to be regulated under the law of the place of their residence. For example, a Christian NRI couple residing in the UAE may consent to submit to Muslim Personal Law to achieve a mutual consent divorce.

As long as such consent is given, the decree is considered valid.

Once the decree is finally obtained for mutual consent divorce, a notice regarding the same along with the marriage certificate MUST be sent to the Marriage Officer in India to validate your divorce.

Filing for mutual consent divorce in India – Important Information for NRIs

  1. Appearances in initial court proceedings can be made by the power of attorney if one party fails to attend.
  2. After the first motion, a 6-month long interim period is granted to the couple to confirm or withdraw their consent. This interim period can be extended up to 18 months for NRI couples.
  3. In the second stage of motion, the power of attorney cannot fulfill the role of the absent party. Both parties must be present.

Note – A divorce decree obtained from an Indian court for a marriage that was solemnized in India is valid in all countries. Such a decree can easily be recognized in any country by filing a petition for recognition if and when needed.

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