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IMPORTANCE OF MOU IN MUTUAL DIVORCE


Posted On : May 9, 2019
IMPORTANCE OF MOU IN MUTUAL DIVORCE

In my present blog, I shall be discussing on one of the most important aspects of a mutual divorce and that is MOU [Memorandum of Understanding]. My blog shall be stressing on the basic issues which are stated below:

1.     What is a MOU?

2.     Why is MOU important in a Mutual Divorce?

3.     Relevant Case Laws where MOU was held of utmost importance

Presuming that one knows what a mutual consent divorce is, I shall still take a moment here and explain that in a few lines.

So Mutual Divorce is basically when two couples, who have been staying separately for a period of 1 or more years and decide to part ways finally by way of a divorce, whereby both the parties [The Husband and The Wife] want a divorce from a each other and both of them set the terms unanimously about the divorce and the terms upon which they are divorcing each other and also the terms as to how shall their relation operate after such annulment of marriage. It is then, that such a divorce is said to be mutual when both the parties are consenting for the same thing at the same time against the same person upon the same terms and conditions and agree to annul the disturbed marriage with such terms and conditions which have been accepted together and freely consented by both.

WHAT IS A MOU?

Having discussed what a Mutual Divorce is all about let us now come to understand the basic crux on which such a type of divorce stands. I.e. MOU [Memorandum of Understanding]. Let this be said that a MOU is the basis upon which the Husband and Wife take divorce. It is more like a mutual settlement which has been penned down in writing and acts as a documentary proof of such terms which have been mutually accepted by the parties to the divorce.

The term “MOU” has been used at a variety of places. They are used in Partnerships, Companies, Divorces, Settlements and also in General. The nature of the “MOU” changes from time to time and also varies according to the purpose of usage. The essence however, remains the same.

The “MOU” acts as a Non – Binding, Non – Legal Agreement based upon which an Advocate prepares a “Separation Agreement” which when signed and notarized by the parties becomes legally binding and enforceable. The “MOU” in itself does not create any liability, it is just the basis of understanding which is taken into consideration while preparing the “Separation Agreement”  

“MOU” is the skeleton principle or guidelines which are taken into consideration while preparing the “Separation Agreement” and it is on the basis of the “MOU” that the former Agreement is made.

A “MOU” deals majorly with the following things and provides the guidelines, on the basis of which “Separation Agreement” is created accordingly. They are as follows: -

1.     The understanding on the basis of which both the spouses are divorcing.

2.     The payment of maintenance and alimony.

3.     The basis on which properties shall be shared.

4.     The decision about Child Custody/Guardianship and maintenance of the same.

5.     Duties and Liabilities of the Husband and Wife towards their child/children.

6.     Conditions of Separation after Divorce.

WHY IS MOU IMPORTANT IN A MUTUAL DIVORCE?

The “MOU” in a Mutual Divorce is of preliminary importance because such a divorce is not contested by any of the parties and henceforth, the basis of such divorce is settled mutually out of court and it is just that the parties enter the court room to obtain the decree for divorce on the grounds accepted by them mutually, of which the “MOU” is created at first and thereafter the “Separation Agreement” which after execution is signed and notarized and thereafter creates a legally binding effect on both the parties to comply with.

The following are some of the reasons as to why creation of “MOU” in a Mutual Divorce is very important. They are:

1.     It does not leave any scope of any further litigations as every minute detail is mentioned there and it is on the basis of such understanding that the divorce takes place.

2.     The “MOU” acts as the document to rely upon during separation. Nothing more or nothing less can be taken or given than that which is agreed in the “MOU”

3.     It clearly demarcates the rights and liabilities, assets and debts, and other various claims which one can have over each other and all of them are laid settled in writing prohibiting any of them to enter into litigation for the same purpose.

4.     The major claims of maintenance and alimony are decided there and even in case there is a change in income standards this alimony [once decided shall not exceed]. Hence it reduces the burden to pay more alimony when one starts earning more. The payment medium remains static in spite of change in income which safeguards the husband.

5.     It articulates the understanding to writing which then becomes legally binding to enforce the same.

6.     In case of breach of such understanding, either of the parties can sue the other for such breach in the same manner as that in case of breach of contract.

7.     The decisions relating to Custody of Children and maintenance of them are also well expressed and settled in this “MOU”, thus avoiding frivolous litigation's to take up any extra burden for the well being of the child.

8.     The distribution of Assets and Liabilities shall also be explained in the “MOU”. ETC

9.     Such a “MOU” also safeguards the interests of the Husband from false allegations of Domestic Violence and cases of 498A after Divorce.

10. It acts as a full and final settlement, after which no further litigation's can take place between the Husband and Wife with respect to the breakdown of marriage. However, if in case any one of the two breaches the terms of the “Separation Agreement” then the aggrieved person has all the rights to sue the person responsible for such breach and compel specific performance according to the MOU executed.

Though the above list is not exhaustive, they are the major issues which get covered in a “MOU”. By doing so the parties who want to take divorce avoid a huge process of litigation in deciding as to the above issues as it becomes cumbersome and also time consuming. “MOU” decides in advance everything that a court of law had to decide [if such “MOU” had not been executed beforehand]. It reduces the workload of the court by settling a lot of matters out of court with mutual consent which in other ways would have been brought to the courtroom for the judge to decide and then adjudicate upon the same.  

RELEVANT CASE LAWS WHERE MOU WAS HELD TO BE OF UTMOST IMPORTANCE

1.     Rajat Gupta vs Rupali Gupta

2.     Kapildeo Prasad Sah vs State of Bihar

3.     Case of Avneesh Sood

4.     S. Balasubramaniyam vs P. Janakaraju & Anr.

5.     Case of Dinesh Gulati

6.     Sureshta Devi vs Om Prakash

7.     Smruti Pahariya vs Sanjay Pahariya [2009]

8.     Anil Kumar Jain vs Maya Jain [2009]

9.     Hitesh Bhatnagar vs Deepa Bhatnagar [2011]

10. Prakash Alu,al Kalandari vs. Mrs. Jahnavi Prakash Kalandari  [2011]

11.  Mrs. Ishita Kunal Sangani vs Kunal Sudhir Sangani [2014]

12.  Rajiv Chhikara vs Sandhya Mathur [2017]

13.  Amardeep Singh vs Hardeep Kaur [2017]

CONCLUSION

In my honest opinion, I do believe that in the present scenario whereby frivolous litigation's have reached to such an extent that it is undermining the basic essence of statutory provisions which were once created to safeguard the interests of the women and now are being misused has took the matters of divorce at a tight spot for which till the present date there is no solution apart from fighting it out which does take a lot of time, energy and money.

However, having made a Pre – Nuptial Agreement before marriage or A “MOU” cum “Separation Agreement” before the dissolution of marriage safeguards both the interests of the wife and the husband.

Apart from that it also ends up in speedy disposal and timely justice. Also, it curtails the fear of false cases and untimely litigation's from either the husband or wife. Such a settlement is very much required and is the need of the hour whereby such disputes end by mediation and not litigation. 

Written By :
Shreyash  Mohta
Shreyash Mohta
Kolkata |

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