Mutual Consent Divorce
Under Indian divorce laws pursuant to Section 13-B of the Hindu Marriage Act, 1955, the parties may seek divorce by mutual consent through a divorce lawyer. Mutual consent means that both (husband and wife) agree to a peaceful separation. Mutual divorce is a way to opt-out or legally dissolve the marriage. It is less time-consuming, inexpensive, and the easiest method to get a divorce.
The requirement to be complied with for a Mutual Consent Divorce
a) The parties must live separately either in the same matrimonial home or at some other residence for at least one year.
b) There is no possibility of adjustment or reconciliation between them.
c) Mutual consent is essential. There should not be any pressure, coercion, force, or undue influence in filing a divorce petition.
d) Either party can withdraw the petition within six months from the date of filing a divorce petition.
The husband and wife must mutually agree on two points.
- One is issues of alimony or maintenance. No minimum or maximum limit on maintenance.
- The next is custody. This can also be done effectively among parties. Custody may be shared, joint or exclusive, depending on the spouses’ understanding.
Documents required for filing for divorce by mutual consent
To file a petition for divorce by mutual consent, you require the following documents:
- Address proof of husband and wife;
- Marriage Certificate;
- Details of professions and present earnings of spouse (husband and wife);
- Marriage photographs of spouse;
- Details of family background;
- Evidence to proving spouses have been living separately for one year or more;
- Evidence to prove failed attempts of reconciliation;
- Details of assets and property of spouse;
- Income tax statement;
- Such other documents may be required depending on the case.
How to file for Divorce by Mutual Consent?
Let us now understand the procedure to file for divorce by mutual consent.
Important steps involved in filing a divorce petition are:
1. Filing a joint petition
This is the first step in filing a divorce petition. Next, the party should file a joint petition before the family court stating that they cannot stay together and have mutually decided to get separated. Both spouses should sign this joint petition.
2. Appearance of both parties in a court
After filing a joint divorce petition, the next step is the appearance of both spouses before the court on the date decided by the court.
3. Scrutiny of the petition by the court
Once the party appears before the court, the court scrutinizes all the documents they filed and tries to reconcile the parties. If the parties fail to reconcile, then the matter proceeds toward the next step.
4. Recording of statement and passing of First Motion
Once the statement of both parties is recorded on oath, the court passes the First Motion order. The First Motion order gives the party six months to reconcile.
5. Appearing for Second Motion
Suppose the parties fail to reconcile after the First Motion order. In that case, the parties will have to appear for the final hearing called Second Motion. The Second motion has to be made within 18 months from the date of the First Motion order. At this stage, if the parties wish to withdraw the petition, they can do so at any time before the passing of the decree.
6. Decision of the Court
This is the final step; now, after examining and recording the statement of both parties, the court passes the final decree. Suppose the court is satisfied that the parties are desirable to dissolve the marriage and cannot stay together. In that case, the court passes the divorce decree.
Some frequently asked questions for divorce-by-consent are answered below:
When can a person file for divorce by consent?
Parties intending to dissolve the marriage must wait at least one year after marriage.
They must show that they lived separately for one year before the divorce petition was filed. During this separation period, they could not live together as husband and wife.
Where to seek a divorce?
A divorce lawyer files such a petition in the city’s family court where they last lived together (i.e., their matrimonial home).
Can any party withdraw after filing for divorce by mutual consent?
Yes, any partner is entitled to withdraw divorce by mutual consent petition during these six months when the petition is pending in court by filing a request to the court stating that he/she will not seek divorce by mutual consent. In these circumstances, the court will not grant a divorce decree.
What can the other partner do in such circumstances?
The other party will have to file a contested divorce petition under Section 13 of the Hindu Marriage Act, 1950.
A contested divorce can only be granted on specific grounds such as cruelty, desertion, voluntary sexual intercourse with another person, other unhealthy spouses, conversion of religion by the other spouse, leprosy, venereal disease, spouse renouncing the world, or missing for more than seven years.
Can the spouse consent to divorce-free remarriage?
Divorce rules clearly state that remarriage without divorce is punishable with seven years imprisonment.
If a spouse is absent for a long time, can divorce be applied?
Suppose there is evidence of a spouse’s absence without informing the other spouse of his whereabouts for a continuous seven-year period. In that case, a petition should be filed in court in this regard.
What are the costs for filing a suit for divorce by mutual consent?
If you’re hiring a lawyer, it can cost anywhere from Rs. 25,000 to Rs. 75,000. But if you do your documentation without a divorce lawyer, the cost will be meager.
How long does it take to get a divorce by mutual consent decree?
The divorce petition can last for about six months to two years. After that, it varies from case to case. However, mutual consent divorce takes less time than other types of divorce.
Is the appearance of parties necessary for obtaining a divorce decree?
Yes, the appearance of the parties during the First and Second Motion is necessary. However, it is at the court’s discretion to allow the party not to attend the proceedings or appear online.
When both spouses do not wish to stay together any longer, they can seek divorce by mutual consent. It is a less time-consuming and cost-effective way of getting a divorce. In a divorce by mutual consent, the court grants the husband and wife a 6-month period to resolve the issues and misunderstandings and reconcile. For example, suppose the parties can’t negotiate within six months. In that case, the court will grant the divorce after examining all the evidence and recording both parties’ statements. If, however, during these six months – 18 months periods, they want to withdraw the divorce petition, then they are free to do so.