Law4u - Made in India

What is the procedure for filing a divorce petition under the Special Marriage Act?

14-Aug-2024
Family

Answer By law4u team

Filing a divorce petition under the Special Marriage Act, 1954, involves specific steps and legal requirements. Here's a detailed guide: 1. Eligibility: Marriage Duration: The couple must have been married for at least one year before filing for divorce. However, in exceptional cases, the court may allow filing before the completion of one year. Grounds for Divorce: Under the Special Marriage Act, divorce can be sought on various grounds, such as: Adultery. Desertion for a continuous period of not less than two years. Mental disorder or incurable insanity. Cruelty (physical or mental). Conversion to another religion. Incurable disease. Presumption of death (if a person has not been heard of for seven years). 2. Types of Divorce Petitions: Divorce by Mutual Consent: Both parties agree to dissolve the marriage amicably. Contested Divorce: One spouse files for divorce on specific grounds, and the other contests it. 3. Procedure for Filing a Divorce Petition: A. Divorce by Mutual Consent: Joint Petition: The spouses jointly file a petition for divorce under Section 28 of the Special Marriage Act in the family court where: The marriage was solemnized, or The couple last resided together, or The wife is residing at the time of filing. First Motion: Both parties appear before the court and submit their statements, expressing mutual consent to dissolve the marriage. Cooling-Off Period: After the first motion, the court grants a cooling-off period of six months to reconsider the decision. The petition can be withdrawn during this period. The cooling-off period can be waived by the court in exceptional cases. Second Motion: After the cooling-off period, both parties must again appear before the court for the second motion. The court will verify that mutual consent still exists and that there has been no coercion. Decree of Divorce: If satisfied, the court will grant a decree of divorce, officially dissolving the marriage. B. Contested Divorce: Drafting the Petition: The petitioner (spouse seeking divorce) must draft a divorce petition with the help of a lawyer, stating the grounds for divorce. Filing the Petition: The petition is filed in the family court with jurisdiction over the case. Service of Notice: The court issues a notice to the other spouse (respondent) to appear in court and respond to the petition. Response from the Respondent: The respondent files a reply to the petition, either contesting or agreeing to the divorce. Evidence and Hearings: Both parties present evidence, witnesses, and arguments to support their case. The court may attempt reconciliation or mediation at this stage. Final Hearing: The court hears the final arguments and examines all evidence. Decree of Divorce: If the court is convinced that the grounds for divorce are valid, it grants a decree of divorce, thereby dissolving the marriage. 4. Documents Required: Marriage Certificate. Address Proof: of both spouses. Photographs: Marriage photographs and individual photographs of both parties. Proof of Separation: If applicable, such as a separation agreement or proof of living separately. Income Tax Returns: and salary slips, if applicable. Details of Children: If any, including their custody arrangements. Evidence Supporting Grounds: for divorce (if contested). 5. Time Frame: Mutual Consent Divorce: Typically takes 6 months to 1 year, depending on the cooling-off period. Contested Divorce: May take several years, depending on the complexity of the case and court proceedings. 6. Legal Fees: The cost of filing a divorce petition varies and includes court fees and lawyer fees. The fees depend on the complexity of the case and the lawyer's charges. Filing for divorce under the Special Marriage Act is a legal process that requires careful consideration of the grounds and adherence to legal procedures. It's advisable to consult a family lawyer to ensure that the process is handled correctly.

Family Verified Advocates

Get expert legal advice instantly.

Advocate Yogesh Share

Advocate Yogesh Share

Cyber Crime, Anticipatory Bail, Arbitration, Armed Forces Tribunal, Bankruptcy & Insolvency, Banking & Finance, Cheque Bounce, Child Custody, Corporate, Consumer Court, Breach of Contract, Civil, Customs & Central Excise, Criminal, GST, Domestic Violence, Insurance, Immigration, Documentation, High Court, Family, Divorce, International Law, Labour & Service, Media and Entertainment, Landlord & Tenant, Medical Negligence, Motor Accident, Muslim Law, Recovery, R.T.I, Property, Patent, NCLT, RERA, Startup, Succession Certificate, Tax, Trademark & Copyright, Supreme Court, Revenue, Wills Trusts

Get Advice
Advocate Magdum Qureshi

Advocate Magdum Qureshi

Anticipatory Bail, Cheque Bounce, Criminal, Cyber Crime, Family

Get Advice
Advocate Mahendra S Khandeparkar

Advocate Mahendra S Khandeparkar

Divorce, Family, Landlord & Tenant, Property, Civil, Child Custody

Get Advice
Advocate Shyam Vitthal Mahabare

Advocate Shyam Vitthal Mahabare

Anticipatory Bail, Cyber Crime, Domestic Violence, Family, Property, Divorce, Cheque Bounce, Civil

Get Advice
Advocate Shweta Sharma

Advocate Shweta Sharma

Criminal,Family,Divorce,Child Custody,Domestic Violence,

Get Advice
Advocate Anmol Deepak Chordiya

Advocate Anmol Deepak Chordiya

Criminal, Anticipatory Bail, Banking & Finance, Civil, Cheque Bounce, Family, High Court, Motor Accident, Property

Get Advice
Advocate Gorav Momiya

Advocate Gorav Momiya

Anticipatory Bail, Banking & Finance, Cheque Bounce, Child Custody, Consumer Court, Court Marriage, Criminal, Cyber Crime, Divorce, Domestic Violence, Family, High Court, Motor Accident

Get Advice
Advocate Jamaluddin G

Advocate Jamaluddin G

Civil, Family, Cheque Bounce, Breach of Contract, Landlord & Tenant

Get Advice
Advocate B Raghuramsingh

Advocate B Raghuramsingh

Anticipatory Bail, Bankruptcy & Insolvency, Banking & Finance, Cheque Bounce, Civil, Criminal, Divorce, Insurance, Motor Accident, Recovery, Arbitration, Breach of Contract, Child Custody, Court Marriage, Domestic Violence, Family, High Court, Muslim Law, Property, Succession Certificate

Get Advice
Advocate Nemchand Sahu

Advocate Nemchand Sahu

Anticipatory Bail, Armed Forces Tribunal, Arbitration, Banking & Finance, Bankruptcy & Insolvency, Corporate, Child Custody, Civil, Criminal, Customs & Central Excise, Divorce, Domestic Violence, Family, High Court, Cheque Bounce

Get Advice

Family Related Questions

Discover clear and detailed answers to common questions about Breach of Contract. Learn about procedures and more in straightforward language.