Mutual Consent Or Contested Divorce? What Changes Legally, Financially And Emotionally

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The primary goal in any divorce proceedings is dissolution of marriage. However, in any divorce, ancillary matters such as alimony, child custody, child support, spousal maintenance, division of property etc. also need resolution. In a mutual consent divorce, both spouses agree to part ways and have reached consensus on these key issues. They jointly file a petition with the Court, presenting their agreement on the aforesaid matters.

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Conversely, a contested divorce arises when only one spouse seeks dissolution of marriage and the other spouse is unwilling for the same. In such cases, the spouse wanting the divorce (the Petitioner) unilaterally approaches the Court, filing a Petition detailing the grounds on which he/ she in entitled to a decree of divorce.

The Court then decides not only whether to grant the divorce but also rules on all associates matters. Even if both spouses want a divorce but fail to agree on the key issues mentioned hereinbefore, a contested divorce becomes necessary.

Legal Requirements And Grounds For Divorce

In a divorce by Mutual Consent, there is no requirement to give details of disputes between the spouses and it is sufficient to mention that there are irreconcilable differences between them which has resulted in irretrievable breakdown of marriage.
However, in a contested divorce, the spouse seeking the divorce has to prove that the other spouse is guilty of a matrimonial offense and he/ she is, thus, entitled to a decree of divorce.

Matrimonial Laws such as the Hindu Marriage Act, 1955, Indian Divorce Act, Parsi Marriage And Divorce Act, Special Marriage Act, 1954 etc. lay down grounds for divorces such as cruelty, desertion, adultery, mental disorder, conversion to another religion etc. The onus of proof is on the spouse seeking a divorce on any of such grounds.

When Does A Contested Divorce Become Necessary?

A contested divorce becomes inevitable if one spouse wishes to end the marriage and the other does not. Even when both partners agree to seek a divorce, if there is no consensus on issues like alimony, child custody, quantum of child support, division of property etc., the matter must be resolved through court in a contested proceeding.

Time Frame

While a divorce by mutual consent generally takes around six months from the date of filing, a contested divorce can stretch over five years or more, depending on the complexity of the case and court schedules.

Cost- Effectiveness

A divorce by mutual consent is significantly more cost-effective, both financially and emotionally. It avoids prolonged legal fees, multiple court appearances and emotional distress. The mental strain in matrimonial cases often outweighs financial costs and a divorce by mutual consent helps reduce the burden on all fronts.

Implications Of Each Type

Divorce is emotionally taxing, regardless of the route. However, divorces via mutual consent are less traumatic because the couple does not need to air grievances publicly or relive painful disputes. It allows respectful, even amicable, parting that preserves some dignity of the relationship.

Contested divorces, in contrast, are laden with emotional upheaval. Allegations and counter allegations are made in court, dragging personal lives into public scrutiny. It can leave individuals exhausted, vulnerable and emotionally drained. While sometimes necessary, the toll it takes can not be overstated.

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While there is no reason to fear a divorce, whether by mutual consent or contested, it is worthwhile to remember that divorce is a tool to end one's suffering and should not be misused as a tool to inflict suffering on one's spouse. If this goal is kept in mind, a person can come out better from a divorce and not bitter.