Mutual Divorce vs. Contested Divorce: Key Differences Explained

Introduction

Divorce is the process when a couple decides to separate and dissolve their marriage. It is a legal process that determines the division of assets, custody, and responsibilities that a couple shares when together. In India, there are broadly two kinds of divorce, namely, mutual consent divorce and contested divorce. Having a clear understanding of both the kinds of divorce is crucial for emotional preparedness and also for planning the legal strategy an individual wants to take to have an effective divorce without hassle. 

Divorce is an emotionally and physically tiring process that a couple undergoes. The end result of both types of divorce is the same, however, choosing the type of process makes a huge difference. On one hand, mutual consent divorce is less tiring because both the persons in the marriage want to get the divorce but the contested divorce is emotionally draining and time-consuming as here only one person in the marriage wants to get the divorce. 

Understanding which kind of divorce can be a challenging process. Not sure which divorce path to take? Prime Legal’s divorce lawyers can guide you in choosing the best option for your case. 

 

What is Mutual Divorce?

A mutual divorce is when both the spouses jointly decide to dissolve the marriage, they approach the court for mutual consent divorce. Section 13B of the Hindu Marriage Act, 1955, mentions the concept of mutual concept divorce for the Hindus. The provisions of the Special Marriage Act, 1954 also mentions about the mutual consent divorce for interfaith marriages. Further, the personal laws also mentions mutual consent divorce. 

Under the mutual consent divorce, both the spouses agree on the separate and dissolution of marriage. They decide on the alimony, maintenance, and custody (if there is a child) mutually. Further, they also take decisions on the division of the property that they hold together. 

 

Features of Mutual Consent Divorce:

1. Here, both the spouses must agree to dissolve the marriage mutually.
2. Issues such as alimony, child custody, and maintenance can be settled by the spouses mutually.
3. It is a time-efficient process that usually takes around 6 to 12 months.
4. As the couple decide to mutually dissolve the marriage, the chances of conflict arising is very less. 
5. The proceedings under mutual divorce ensure privacy of the couple and become less contentious. 

A couple choose the mutual consent divorce when they believe that the marriage has irretrievably broken down. Learn the Mutual Consent Divorce Procedure in India step by step.

 

What is Contested Divorce?

A contested divorce takes place when one of the spouses wants to end the marriage and file for divorce while the other spouse does not want to end the marriage. Under such a situation, one of the spouses files for divorce under the provisions given by the law. 

A contested divorce is filed on the grounds of cruelty, adultery, desertion, conversion of religion, mental disorder or unsoundness of mind, etc. 

 

Features of Contested Divorce:

1. Such a divorce is filed when there is disagreement between the parties. 
2. The judge decides the alimony, maintenance, and custody issues.
3. It is a time-consuming process that takes around 1-3 years. 
4. It is an expensive procedure due to prolonged litigation. 

To understand the filing process, see How to file for Divorce in India – Step-by-Step Guide.

 

Key Differences Between Mutual and Contested Divorce

Feature	Mutual Divorce	Contested Divorce
Consent	Both the spouses must agree to the divorce.	One spouse opposes the divorce.
Court Procedure	The process is simple as there are fewer hearings.	There are multiple hearings and hence the process is complex.
Duration	It usually takes around 6 to 12 months.	It usually takes around 1 to 3 years depending on the gravity of dispute and evidence presented.
Emotional Stress	There is less stress because the divorce is amicably decided by both the spouses. It is more of a cooperative procedure where the spouses officially end the marriage.	The emotional stress is higher as one of the spouses does not want to divorce. There are conflicts and allegations put forth, emotionally stressing the couple.
Cost	It is less expensive as there are less hearings, thus reducing the litigation cost.	It is more expensive as there are more hearings, thus increasing the litigation cost.
Alimony and Custody	Alimony and custody are mutually decided by the spouses. The court merely approves the decision on fairness and legality.	Alimony and custody matters are decided by the court on behalf of the spouses after hearing both the spouses and examining the evidence presented.

 

Advantages and Disadvantages of Mutual Consent Divorce and Contested Divorce

Mutual Consent Divorce

Advantages: 

1. The cost of litigation is lower.
2. The divorce procedures are amicable and less stressful.
3. It is a time-effective process, giving quicker resolution. 
4. Children are affected less during the parting as the custody is decided by the spouses amicably. 

 

Disadvantages:

1. The divorce on mutual consent won’t take place if one spouse says otherwise and does not give their consent. 
2. Both the spouses must agree on all the terms of the divorce, including alimony, maintenance, custody, etc.

 

Contested Divorce

Advantages:

1. One spouse can file for divorce even if the other spouse is not ready fo divorce. 
2. It provides justice and accountability in cases of cruelty, adultery, or desertion. 
3. The alimony and custody matters are decided by the court after evaluating the evidence, ensuring the rights of the weaker spouse are protected. 

 

Disadvantages:

1. It is a time-consuming process usually taking around 1 to 3 years or even more due to multiple hearings. 
2. The costs are more due to prolonged litigation.
3. It is an emotionally draining process as spouses face cruelty allegations. Families as well as children are also severely impacted.

 

When to Choose Mutual Divorce vs. Contested Divorce

There are various factors, such as dispute level and relationship dynamics that help in determining the type of divorce to choose for divorce proceedings. 

• Mutual divorce: Choose mutual divorce when both the spouses agree to separate peacefully, and the matters of alimony and custody are amicably decided by them. It grants quicker resolution and is also a less stressful process. 
• Contested divorce: Choose contested divorce when one party refuses to file for divorce. Serious disputes arise about money, custody, or property. 

 

Tips for Filing the Right Type of Divorce

Before filing for divorce, one should keep following things in mind:

1. One should seek professional legal advice from a divorce lawyer before filing the petition. 
2. During settlements, always ensure and evaluate the financial and custody matters properly to avoid future problems. 
3. Arrange proper documentation including marriage certificate, identity proofs, financial records, and other relevant documents.

 

Conclusion

The choice between mutual divorce and contested divorce is significantly impacts the cost, time, and emotional health during the end of marriage. It can also severely impact the relationship of the couple with the family members and children involved in the marriage. 

Mutual divorce offers a hassle free, fast, and less stressful exit from the marriage, whereas, contested marriage can be useful when there is a serious issue and one spouse does not want to end the marriage. 

Consulting a divorce lawyer before taking any step can help you in this tough journey and an experienced lawyer can ensure that your rights are protected and that you make an informed choice about your future. 

Unsure which divorce path suits your case? Contact Prime Legal’s expert divorce lawyers in Bangalore for professional advice.