Contest divorces are increasingly being replaced by mutual consent divorces in India. Even when a couple approaches the court for a contest divorce, it is mandatory upon the court to first introduce to them the option of an amicable settlement, both, by virtue of Section 89 of the Code of Civil Procedure, 1908 and Section 9 of the Family Courts Act, 1984. Be it mediation in front of the Lok Adalats or private mediation mechanisms, the couple needs to beware of the consequences of such a settlement and it is very important to thoughtfully weigh the pros and cons of every solution and its effect on them, more so in the long term impact.
There are certain points which both the parties need to keep in mind while arriving at a divorce settlement. If you wish to arrive on a smart settlement you should always consult the best lawyers, for example if you live in a city like Lucknow you should only consult the best divorce lawyers in Lucknow who can make sure that both the parties get equal weightage.
These points are enumerated as under:
- They must make a note of all the joint assets that belonged to them as a couple. This list could include things as big as houses, cars, bank accounts and as small as furniture sets, decorative items of the house, television, radio, refrigerator etc.
- They will have to mutually decide how these assets are to be equitably divided. If they are not willing to let go of a particular object, then they must determine the then market value of the object and sell it and divide the receipts equally among the two.
- Not just assets, but, it is also very important to discuss the liabilities and how they plan to discharge those burdens. The burden of discharging the liabilities must be shared in a way similar to that in which the distribution of assets was done.
- If there is a child involved, they must decide amongst themselves which parent shall have the custody of the child. It should also be made very clear at the outset itself about the visiting rights of the other parent. Questions like where he/she can meet the child, when can he/she meet, how frequently and for how long he/she can meet must be expressly spelt out in the agreement itself.
- The spouse who is not financially independent must be doubly sure of his/her sustenance means post the divorce. Under Indian laws, both parties should be able to lead a life of the standard post the divorce, as they used to live prior to the divorce. Therefore, if a spouse in not earning, he/she must make it clear to the other spouse that the responsibility of maintaining him/her remains with that other spouse until he/she marries again. Even if a spouse is earning, but not earning so much as to maintain the quality of life which he/she had before the divorce, still, there is provision under Indian laws for maintenance of such spouse by the other spouse till such spouse marries again.
- Finances with respect to the children, if any, in the marriage must also be discussed. Expenditure of the child concerning his/her education, medical and health related expenses, funds for recreational activities like taking the child on vacations etc. must be discussed well before hand.
- Insurance policies, provident funds, pension plans etc. must also not be left out from the divorce settlement.
- The spouses must take some kind of security from the other spouse to ensure that the other spouse will not back-out or withdraw from the settlement before the court of law.
- The couple must also not forget to add a confidentiality clause in their agreement lest the other partner defame the spouse is public in future.
- If the spouse is suspicious of the other party likely to behave in a particular manner in future, he/she must safeguard his/her interests by including a clause prohibiting the other spouse from committing that act in future.
Lastly, it is very important to make the settlement a written one with each party signing to it and declaring that the settlement was arrived at with full and free consent of each party with no external influence whatsoever.
All the above-mentioned points are a must for a smart divorce settlement. Additionally, it is also important to include the advice of their respective legal counsellors, which might be specific to their particular case.