The Memorandum Of Understanding In Divorce Is Legally Binding In India?

In India, divorce can be either a Contested divorce or a Mutual divorce. In a contested divorce the husband and wife do not agree mutually to end the marriage. It means one party agrees and the other party denies taking divorce.

But in the mutual divorce party agrees to end their marriage. The memorandum of understanding helps to negotiate the issues between the parties regarding the distribution of finance, child custody, distribution of assets, property and any other arrangement for a peaceful legal divorce process. 

Mutual divorce presents itself as a means by which spouses can reach a peaceful agreement to dissolve their marriage. The Memorandum of Understanding (MOU) is an important document which helps in divorce by negotiating the terms and conditions and reaching one point. 

Afterwards, they agree on the same points, the party signs the agreement and then they are legally bound by the agreement. The divorce MoU will be presented in court through a lawyer for further proceedings. 

What is a memorandum of understanding in Divorce?

A memorandum of understating is an agreement between the parties which is not legally binding until enforceable by law. It is a legal document which helps couples to get a divorce mutually by resolving the issues which arise between them regarding the Custody Of The Child, Visiting Rights, Maintenance Of The Child, Arrangements Related To Property, And Distribution Of The Assets.

What are the essential conditions of the Divroce MOU?

The Divorce MOU is a simple agreement for mutual divorce on some condition which is agreed by the parties. The agreement can be legally binding if parties sign with mutual consent and agree and sign Mou to reach court for a proper divorce process, file a petition and fulfil the condition which is essential for the enforcement of the contract.

• There must be the intention of parties to enter into the MoU.
• Mention the Settlement and obligations of the parties.
• Mention all details regarding payment and finance.
• All the clauses shall be mentioned in the agreement on which parties agree.
• Fulfil all the Valid conditions which are necessary for the enforcement of the MoU.
• The parties and witnesses must sign the document for legal enforcement.

What is the legal importance of a Divorce MOU?

The Divorce MOU is an important document when either party fails to perform their obligations as per the agreement. The other party can easily approach the court to perform the obligations which are mentioned in the agreement.

How does it help in mutual divorce?

It helps in smooth and peaceful legal process of mutual divorce. They discuss all the issues and negotiate the issues mutually which help the court to decide the case

Procedure for applying for a Mutual Divorce?

• The parties first submit the joint petition in the court for mutual divorce. It also includes an agreement of MoU to distribution of property, child custody, maintenance arrangement, etc.
• The petition was review by the court, recording of statements of parties, etc.
• Afterward, the court set a date for the appearance in the court.
• The court records the statement and passes the first motion on oath.
• After 6 months, parties raise a second motion. (In a recent ruling the Supreme Court said that a 6 month period can be waive if they are separate for more than 1 year).
• Then parties appear for the second motion in the court.

Who can help in drafting the MOU?

The Memorandum of understanding is a legal document. So, it can be draft with the help of an expert lawyer because they know how to negotiate between the parties, they are aware about legal clauses of the document with their knowledge and experiences and provide the best solution.

Case law related to MOUs:

Brikram Kishore Parida v. Penudhar Jena (AIR 1976), In this case the court held that if there is a contract regarding MOUs, mention the law and clauses carefully in the contract. Whatever the promise made by parties should be with intent to fulfil the obligations of the contract.

Subimalchandra Chatterji vs. Radhanath  Ray (AIR 1934), The Memorandum of Understanding can be implement without any doubt on the basis of equity and promissory estoppel.

Sureshta Devi v. Om Prakash ( AIR 1991): The Supreme Court held that an MoU between spouses can be consider a valid agreement.

Kumar v. Jahgirdar (AIR 2010), The Supreme Court held that divorce Memorandum of understanding agreement can be into a final divorce decree if it is reasonable.

Conclusion

The memorandum of understanding is a mutual agreement (MOUs), which offer a formal and absolute framework for partners to peacefully dissolve their marriage, and are essential to consensual divorce procedures. It is important that if parties want to draft the MOU (Memorandums of Understanding) they should contact and discuss with an experienced lawyer who can guarantee that the MOU (Memorandums of Understanding) is thorough, equitable, and compliant with the law. This method protects each party’s rights and interests while also facilitating a more seamless divorce.

The courts must make a decision regarding the legal enforceability of a memorandum of understanding. As previously said, an agreement will be enforceable if it meets all necessary conditions for a valid contract, such as the presence of an offer, acceptance, the parties’ intention to be bound by the terms of the agreement, consideration, and the act of a party relying on the agreement. When assessing whether a Memorandum of Understanding is lawful, one of the most important factors to consider is the parties’ intention at the time of execution, which can come to conclusion from the document’s terms and conditions.

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