What is a Mutual Divorce?
Mutual divorce is probably the most amicable way to end a relationship. As the name suggests, it splits the marriage in a way where all factors of the marriage are agreed on. Factors such as; Alimony, Dowery, Jehz (Prenuptial Gifts) Monthly Spouse Maintenance, Child Maintenance, Child Support, Medical and Educational costs liability, Child Visitation, Guardianship, Child Custody and more.
Mutual Divorce Vs Normal Divorce
The main difference between a Mutual Divorce and a Normal Divorce in Pakistan is that all factors (that are mentioned above) are stipulated and agreed upon by both husband and wife before they part ways. This is very different than the normal Divorce Methods (i.e. Talaaq if it’s from the man’s side and Khulla if it’s from the woman’s side) where hearings take place, the evidence is presented and it down to the judge to decide in the better interest and welfare of the minor. The Judge considers who the child should stay with (The Custodial Parent), and the schedule of visitation for the Non-Custodial Parent.
6 Factors to Consider before Proceeding
In detail, the points you must consider when deciding to draft your Mutual Divorce are the following:-
- Is there any Dower or Haq Mehr amount left to Pay?
- Dower and Haq Mehr is usually the amount paid by the Man to the Woman. In cases of Talaaq, the man is liable to pay the whole amount, and in the case of Khulla, the woman forfeits 25% to 50% of this amount.
- A Majority of Litigants sometimes do not give divorce in Pakistan for this very reason alone, and this amount is the source of many family feuds.
- This does not always need to be paid. The wife, of her own free choice, could forego this amount. Alternatively, the Husband could willingly give more. This comes down to their individual circumstances and understanding.
- The amount of Spousal Maintenance/Alimony required (If any)?
- The general rule of thumb is that the wife is paid 3 months maintenance (whilst she observes her iddat).
- Again, this is not a hard and fast rule, the woman can forego this, or the man can pay for longer than 3 months, this again is down to the mutual understanding of both partners.
- Are their any Marital Gifts that need to be returned?
- Gifts given to the Bride at the time of the marriage are known as “Jehz” which is the absolute property of the wife’s.
- However, anything that belongs to the husband is given the status of “benefits” that the wife may only have access to during wedlock. After marriage, they are his.
- Although these factors may seem petty, cases like this currently burden the Judicial System of Pakistan from Session court all the way to Supreme Court.
- Jointly owned items (Assets, Money in Joint Accounts, The house, etc.) are split at this stage.
- Who do the children live with?
- This is the biggest factor of all. Will there be Joint Custody or Sole Custody?
- What are Visitation rights agreed on?
- Who will pay for the kids?
- Who will take life decisions for the children until they grow older?
- Will the children have a way of visiting their extended family?
- Penalties for falling foul of the Agreement
- This factor is probably the most under-reviewed factor of any Mutual Divorce deed. If one parent doesn’t let the other parent visit their child or give custody at an agreed time, then what is the penalty?
- What is the penalty when the Parent responsible for paying for the children doesn’t pay on time, or at all?
- The life of the Agreement
- IF there are no kids from the marriage, then naturally points 4, 5 and this point (Point 6) will not matter. But if children are involved, then this point is vital.
- Children grow, and as they grow their needs change also. Will a contract drafted when they were 2 years old be applicable when they are 16 years old?
How to proceed once all the factors are decided
As a mutual divorce deed in Pakistan occurs when both the partners mutually agree to dissolve their marriage, a deed is drafted and signed in front of witnesses. Under this divorce process in Pakistan, there is no need to approach the courts in relation to this matter. The courts may be approached to record the statements of both parties for good measure, but it’s not necessary. Both the husband and wife need to sign a Mutual Divorce Deed and send a written notice to the concerned Union Council in accordance with section: 8 of the Muslim Family Law Ordinance 1961. The same procedure of a normal Talaq/khulla proceedings will be adopted by the union council before issuing a divorce certificate.
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