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Overview of the Divorce Settlement Agreement

A divorce settlement agreement refers to divorce papers. This term is frequently used by parties to a divorce in common parlance. It is an agreement made when the parties reach a consensus for seeking mutual divorce by mutually agreeing to the termination of their marriage smoothly without the involvement of any fights before the court. An agreement contains matters such as child custody, maintenance, distribution of property, payment of mutual debts and liabilities, etc.

The parties to a marriage who are willing to terminate their wedding on basis of a mutual divorce, they can do so by entering on a divorce settlement agreement. Both parties mutually agree into certain subject matters related to marriage. In cases of a contested divorce, if the court passes a divorce decree, the court also provides a settlement agreement which parties to a divorce need to follow.

Such an agreement should contain all the settlement matters to avoid any problems during the settlement procedure is going on. It also helps in the completion of the divorce process smoothly.

It is usually suggested to parties willing to dissolve their marriage by appointing and consulting a legal professional dealing in family and matrimonial issues for drafting a divorce settlement agreement. Such a professional will cover all the legal aspects as per the prevailing laws and regulations related to marriage and divorce.

The agreement for settlement is usually prepared before the parties proceed to seek mutual divorce. Both parties sit together to decide all the matters to the marriage as per the terms and conditions of the settlement.

It is better to use the service being provided by divorce lawyers having the expertise to discuss the matters and solve them amicably for the parties. An advocate helps in covering clauses in the agreement to avoid any future problems which can occur due to any missed out legal requirements in the agreement. A legal professional hears both parties and after considering all the things said, reduces the same in writing in the form of an agreement.

Important Matters to be Mentioned in a Divorce Settlement Agreement

It is important for the parties to sit and discuss all the matters related to the marriage. This will help in avoiding any future possible disputes.

The below-mentioned are the matters concerning marriage which should be included in the divorce settlement agreement depending upon the facts and circumstances of each divorce matter. These are as follows:

All Terms and Conditions of Mutual Divorce Between the Parties

The parties to a mutual divorce are required to mutually agree to all the terms and conditions for making a mutual divorce agreement. These conditions will help parties to resolve all the disputes and matters concerning divorce.

Child Custody and Visitation Right

Custody of the child born out of the marriage between the parties who are willing to seek a divorce is an important factor to be considered while making a divorce settlement agreement. All the factors such as custody, education and maintenance, and other related issues with regard to the child are crucial matters to be finalized.

As per the laws relating to children in India, the justice system takes decisions for the welfare of children. Thus, any decision that parties make must lay emphasis more on the welfare and development of a child. The decision should be made keeping in mind all the laws and regulations prevailing in India for children. A decision with regard to custody of the child is very important as it ensures the desired growth, education and development of the child.

Child Support After Divorce to be Included in the Divorce Settlement Agreement

Along with the custody of the child, another thing such as maintenance of the child is very important. A child should be provided with a sufficient amount of maintenance to have a good standard of living which the child was getting before the divorce of the parents. All necessary expenses required for education and the basic needs of the child must be borne by the parents.

The agreement must clearly mention the party’s name who will be bearing all the expenses related to his/her education fee, basic necessities such as food, clothing and shelter, medical bills, etc. If the agreement has everything clearly stated, it will avoid any disputes related to the maintenance of the child.

Distribution of Properties/Estate

The parties purchase a lot of properties and have ownership of real estate properties. Thus, while the termination of marriage, it is important to decide how the joint properties of the parties will be distributed amongst them and what personal assets a party can retain with himself/herself. A divorce settlement agreement must contain such distribution of properties. The distribution gets complex when parties to the marriage have a joint bank account and a joint loan.

In such a situation, it is important to decide which party will pay the monthly installments to dispose of the loan and who will get the title of the property after the loan has been completely paid off.

Splitting of Assets and Other Households

The parties who have decided to dissolve their marriage try to distribute assets, household materials and other valuable things by mutual understanding. Distribution of assets by mutual decision makes the process easy and leaves no chances of a dispute over the assets later in future. Thus, a divorce settlement agreement is a crucial Document which should be drafted by taking the help of a legal expert.

Property Given to the Wife During Marriage As Stridhan

Streedhan includes all the assets which have been gifted to the wife by both sides during the performance of matrimonial ceremonies and during her married life. The female has the sole ownership of the streedhan. This has been defined under the prevailing laws related to marriage in India. The assets included in the streedhan cannot be distributed during the termination of the marriage. The female has sole right and authority to keep such assets with her.

Thus, it is necessary for the parties to make a list of all assets gifted to the female as a part of streedhan and mention the same in the divorce settlement agreement.

Permanent Alimony

Another important factor affecting the dissolution of marriage is the payment of alimony after divorce to the wife. The amount depends upon the financial status of the husband and the custom prevailing between the parties.

All the factors affecting the amount of alimony must be stated in the divorce settlement agreement by the parties to avoid any future disputes related to the deficiency in the amount.

Clearance or Repayment of Debt

Nowadays, the female spouse has started earning and owning a lot of assets and taking a loan for several purposes such as business loans, home loans or a for the education of their children. Thus, it is important to decide the liability over a party for repayment of any loan by keeping a property as security.

Therefore, it is necessary to mention in the agreement which party will pay off the debt or any liability. The agreement should also contain details with regard to the ownership of the property to the person after the debt has been paid off and the marriage has been dissolved.

Insurance and Passport/Visa Subjects

A divorce settlement agreement must contain a provision related to the payment of insurance premiums by a party to the marriage.

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Important Laws and Their Related Section Governing Mutual Divorce in India

  • As per Section 13B of the Hindu Marriage Act, 1955, parties belonging to Hindu, Jain, Sikh and Buddhist religions can apply for mutual divorce. The Act mandates parties to live separately for one year before seeking a divorce.
  • As per Section 28 of the Special Marriage Act, 1954, parties belonging to different castes or NRIs can apply under this Act for mutual divorce. This Act also mandates parties to live separately for a time period of one year before seeking a divorce.
  • As per Section 10A of the Indian Divorce Act, parties belonging to the Christian religion can apply for mutual divorce. The Act mandates parties to live separately for a time period of 2 years before seeking a divorce.

Pre-Conditions Before Filing Divorce by Mutual Consent

The parties who are willing to seek mutual divorce by filing a joint petition before the court need to clarify certain things. Parties need to put their mutual decision into writing in order to avoid any future disputes. As mutual divorce is solved amicably, parties need to decide on matters relating to custody of the child, maintenance and alimony, distribution of property and assets, etc.

As these matters play an important role during a divorce, parties need to clearly discuss and state all the terms and conditions in the divorce settlement agreement.

When to Enter Into a Settlement Agreement?

The law related to marriage and divorce does not define a prescribed time limit for the parties to enter into a divorce settlement agreement. A party to divorce can do so before filing a divorce petition before the competent court. It is usually advised to parties to enter into an agreement for settling certain matters related to marriage as soon as the matters have been decided by the parties to avoid any issues.

What if One Composes the Settlement Before Moving to Court?

The parties to a marriage who are willing to approach the court for seeking divorce can enter into a divorce settlement agreement before approaching the court if the same agreement has been made and executed with the help of an advocate or a competent mediator. When the agreement is signed and executed the same becomes binding on the parties and the parties are bound to follow all the agreed terms and conditions mentioned in the agreement.

Can I draft Divorcee Agreement by my Own or should I Hire a Lawyer?

Even if a party has sufficient knowledge about divorce and marriage laws and knows how to make an agreement, he/she should take advice from an advocate who has legal expertise in the field of drafting and divorce. If a person is willing to make the agreement, he/she should ask an advocate to review the same. It is important for a party to cover all the legal aspects in an agreement. Thus, an advocate can help a party with the same by covering all the essential legal provisions and matters which are required to state. A person who is not an advocate might miss some of the relevant legal areas which might create any issues. The advocate will draft the agreement by using all the required legal vocabulary and words.

There might be some chances that a person who wants to draft the Document himself does not get updated information about the changes in a certain law or regulation. If a situation arises where the person forgets to use a necessary word, he might end up losing an important right and mess up things. This might also involve parties spending more money. Therefore, it is suggested the parties for hiring a good advocate who is a professional.

Alteration of Terms and Conditions of a Divorce Settlement Agreement

An alteration to the terms and conditions of a divorce settlement agreement is possible if both parties to such an agreement agree with the proposed changes. The law is rigid in nature with regard to property, loans or any commercial matter, but when parties mutually agree to make any changes, they can do so with mutual consent. The parties need to submit the modified agreement in writing to the court and seek a new court order.

Frequently Asked Questions

A legal Document containing various terms and conditions mutually agreed upon by the parties at the time of divorce is called a Divorce Settlement Agreement. It is made before the parties enter into legal proceedings for divorce.

No, it is not necessary for the parties to a divorce to make a divorce settlement agreement. But, it is usually suggested to the parties to make such an agreement due to its advantages. It prevents the parties from entering into disputes related to marriage as all the aspects are covered in the agreement. A mutual divorce is valid and legal in the eyes of the law even if no such divorce settlement agreement has been made by the parties. However, such an agreement is preferable to avoid any chaos which might affect the peaceful state of mind of the parties to divorce in the future.

No, it is not mandatory. But it is recommended to the parties to contact a lawyer for making a divorce settlement agreement who can help them in protecting their rights and duties towards each other.

No. In India, there are no legal provisions which require parties to enter into a settlement agreement before seeking a divorce. Thus, it is suggested to the parties to enter into an agreement so that all the important decisions can be taken and discussed mutually with each other.

A settlement agreement for divorce becomes enforceable by law once it has been signed by both parties to divorce and the same has been approved by a competent judge. Such an agreement becomes an order of the court which can be enforced by the parties.

Yes, a change in terms and conditions of a divorce settlement agreement is possible only if there exists a clause related to the same matter that has been mentioned in the agreement or the prevailing laws allow so. Some changes to the agreement can be made if both parties agree to do so or if there is a big change in the circumstances of the parties.

If an ex-spouse infringes any terms or conditions stated in the divorce settlement agreement, the other party has the right to approach the court seeking enforcement or request for modification in the terms of the agreement.

If one party does not like the clauses stated in the divorce settlement agreement sent by his/her spouse, the other can contact a legal professional for negotiation of terms or make a counter-offer to the spouse who sent the agreement. Also, it is important for the parties to understand all their rights and responsibilities before signing and giving consent to the execution of an agreement.

Yes, a party can sign the agreement sent by the other party only after properly reviewing the proposed agreement. The party can contact a legal professional to understand all the terms and conditions of the agreement.

If both parties do not comply with the provisions of the divorce settlement agreement, legal actions can be taken against them to make the parties agree to follow the terms specified in the agreement. Parties should follow the terms stated in the agreement to protect themselves from any legal consequences.

When parties have applied for a mutual divorce, it is mandatory for both parties to be present before the court for a hearing so that the judge can record statements of both parties. Under certain circumstances, the court can allow a party to be represented by his/her power of attorney in case the party resides outside India or is unable to be present before the court due to some medical situation or other valid reason.

Yes, an NRI person can file a divorce petition without coming to India from a place of the other party’s previous place of residence or place of marriage or in the place where both parties lived before separation.

Yes, a Divorce Settlement Agreement is binding on the parties only if it has been duly executed by a court of law.

Usually, a lawyer having the required expertise can make a divorce settlement agreement for the party to a divorce.

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