Mutual Consent Divorce for NRIs: Divorce Process for Couples Living Abroad

Divorce is a challenging experience for anyone, but when one or both spouses are living abroad, it can feel even more complicated. For Non-Resident Indians (NRIs), filing for a Mutual Consent Divorce is entirely possible, but it requires a few extra steps to account for the international location of one or both parties.

A Mutual Consent Divorce allows both spouses to end their marriage peacefully, agreeing to the divorce without any lengthy legal proceedings. If you’re an NRI or married to someone living abroad, this guide will help you understand the steps involved in the process under Section 13B of the Hindu Marriage Act, 1955 or similar provisions for other marriage acts.

Scenario 1: One Spouse is Staying Abroad

When one spouse is living in India and the other is abroad, the process for a Mutual Consent Divorce is slightly more complicated due to the need for representation of the spouse living abroad.

Step 1: Get a Power of Attorney (PoA) Ready for the Spouse Abroad

• Drafting the PoA: An Indian lawyer will prepare the PoA document. This legal document grants someone in India (called the PoA holder) the authority to act on behalf of the spouse living abroad for all legal matters related to the divorce.
• Signing Abroad: The spouse living abroad will need to print and sign the PoA.
• Consular Appointment: They must schedule an appointment at their nearest Indian Embassy or Consulate for signing the PoA document. This appointment can usually be booked online.
• Attestation: The consular officer will attest the PoA document, confirming that the spouse signed it in front of them.

Step 2: Register the Power of Attorney in India

• Sending the PoA: The signed and attested PoA document must be sent to the person it names as the PoA holder in India.
• PoA Registration: The PoA holder will then register the PoA at the Sub-Registrar Office in India. The registration process involves submitting the document, paying a registration fee, and getting it notarized.

Step 3: File the Divorce Petition in India

• Filing the Petition: The PoA holder in India will file the Mutual Consent Divorce petition in the appropriate Family Court in India on behalf of the spouse living abroad.
• Representation: The spouse in India (if present) will also sign the petition, ensuring that all legal formalities are fulfilled.

Step 4: First Motion in Court

• Court Appearance: Both the spouse in India and the PoA holder will need to appear in court for the First Motion hearing. This is where the court officially records their desire to divorce.
• Court Records: The court will officially record their statements, and the process will move forward.

Step 5: Cooling-Off Period

• After the First Motion, there is typically a six-month cooling-off period, which allows couples to reconsider the divorce decision.
• However, if there are valid reasons, the Supreme Court of India can waive or reduce this cooling-off period.

Step 6: Second Motion and Final Hearing

• Second Motion: After the cooling-off period, the Second Motion is filed by the PoA holder.
• Final Testimony: The spouse in India will give a sworn statement (affidavit), and the spouse abroad must also provide their affidavit, attested by the Indian Consulate in their country.
• Video Conferencing Option: The spouse abroad can request to appear in the final hearing via video conferencing. The court usually allows this request to make it easier for NRIs to participate.
• Court Decision: After hearing the testimonies and reviewing the documents, the court will issue the final divorce decree, officially ending the marriage.

Scenario 2: Both Spouses are Staying Abroad

If both spouses are living abroad, the process is very similar to the one spouse abroad scenario. However, both spouses must arrange for PoA in order to represent themselves in India.

Step 1: Both Spouses Grant Power of Attorney (PoA)

• PoA Drafting: Both spouses will need to have a PoA drafted by an Indian lawyer. This document will give legal authority to a PoA holder in India to act on their behalf.
• Consular Attestation: Each spouse will need to visit their nearest Indian Embassy or Consulate to sign their PoA and get it attested by the consular officer.

Step 2: Register the Power of Attorney in India

• Sending the PoAs to India: The attested PoAs need to be sent to the respective PoA holders in India.
• PoA Registration: The PoA holders will then register both PoAs in India at the Sub-Registrar Office, ensuring that both documents are legally valid.

Step 3: File the Divorce Petition in India

• Filing the Petition: The PoA holders will file the Mutual Consent Divorce petition on behalf of the spouses in India.
• Representation in Court: The PoA holders will appear in court on behalf of both spouses.

Step 4: First Motion in Court

• Court Appearance: Both PoA holders will attend the First Motion hearing in court. The court will record the mutual consent of both spouses to divorce.
• Court Records: The court will officially document the statements.

Step 5: Cooling-Off Period

• As with the previous scenario, there will be a six-month cooling-off period, but this can be waived by the court if there are sufficient grounds.

Step 6: Second Motion and Final Hearing

• Second Motion: After the cooling-off period, the Second Motion is filed by the PoA holders.
• Final Testimony: Both spouses will need to provide their final sworn statements. These must be attested by the Indian Consulate.
• Video Conferencing: Both spouses can apply to appear for the final hearing via video conferencing.
• Court Decision: Once the court is satisfied with the submissions, the final divorce decree is issued, ending the marriage legally.

List of Documents Required for Filing a Mutual Consent Divorce Petition
(For NRI Spouses in Gujarat/Ahmedabad)

• Power of Attorney
• Duly attested by the Indian Consulate in the country where the spouse resides
• Received in India in its original, sealed envelope, together with the PoA-holder’s KYC documents
• Aadhaar Card
• Self-attested copy of each spouse’s Aadhaar
• Passport-Size Photographs
• Two recent colour photographs of each spouse
• Marriage Certificate
• Certified copy of the marriage certificate issued by the Registrar
• Marriage Photographs (if available)
• A selection of 3–5 photos from the wedding ceremony
• Passport Copies
• Self-attested copy of the first (bio-data) page of each spouse’s passport, showing name, photograph, address and signature

Conclusion: Navigating the Mutual Consent Divorce Process for NRIs

If you’re an NRI or married to someone abroad, the Mutual Consent Divorce process may seem complicated. However, with the proper legal guidance, it is possible to complete the divorce process smoothly. The key steps—like granting Power of Attorney, filing the divorce petition in India, and attending court hearings—ensure that both spouses can divorce even while living outside India.

Whether one spouse or both spouses are living abroad, Mutual Consent Divorce offers a more peaceful and efficient way to end the marriage without the stress of contested litigation. Be sure to consult an experienced family lawyer who understands the complexities of NRI divorce cases to guide you through this legal journey.

FAQs

1. 1. Can I appear in the final hearing through video conferencing if I’m abroad?
      Yes, the court typically allows video conferencing for NRIs who are unable to attend the final hearing in person.
   2. Do both spouses need to grant Power of Attorney if both are living abroad?
      Yes, both spouses must grant a Power of Attorney to a representative in India to proceed with the divorce.
   3. What happens if the cooling-off period is waived?
      If both spouses agree, and the court finds sufficient grounds, the cooling-off period can be waived or reduced, allowing for a quicker divorce.
   4. What documents are required for an NRI Mutual Consent Divorce?
      The essential documents include:

      • Marriage Certificate

      • Power of Attorney (PoA)

      • Passport Copies

      • Affidavits of Consent

      • Proof of Living Separately

      • Photographs

      • Court Fee Payment

      • Sworn Statements (for Final Motion)

      • Notarized Documents (if needed)