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Procedure Of Divorce By Mutual Consent

What is Mutual Consent Divorce?

In a mutual consent divorce, the husband and wife mutually agree to separate and end the marriage. As compared to contested divorce mutual divorce saves a lot time as well as money.

What are the requirements before filing of Mutual Consent Divorce?

  • Both the parties have been living separately for at least 1 year.
  • There must be no coercion, fraud or undue influence between the parties and there must be free consent to get the mutual consent divorce.
  • There is no possibility of adjustment or reconciliation between the parties.

What is the complete procedure to get a Mutual Consent Divorce?

  • In a mutual consent divorce proceeding there are 2 mandatory appearances for the couple to be made in the Family Court.
  • Both the spouses act as Petitioners because both the spouses are in agreement to dissolve their marriage.
  • The first step to initiate a divorce procedure is to draft a joint divorce petition and file it in the Family Court having competent jurisdiction.
  • The spouses would require only 1 lawyer to represent them in the court as they both are petitioners in this case.
  • The mutual consent divorce petition consists of a joint statement by the couple mentioning their incompatible differences and that they can no longer cohabit together and therefore, should be granted a divorce.
  • Further, the petition consists the terms of agreement relating to the custody of children, splitting of assets, alimony, maintenance, etc.
  • In the first appearance, statements of both the spouses are recorded by the Marriage Counsellor and then the consent terms are signed by both spouses in the Court.
  • After this, a 6 month reconciliation period (cooling off period) is given to the couple towards one final attempt for reconciliation. The purpose of this period is to provide time to the parties to reconsider the divorce.
  • After the lapse of the said 6 months (reconciliation period), if both parties still don't agree to cohabit together, then the parties have to appear for the second appearance called the final hearing in which Court will grant the divorce.
Note: In a recent judgement of Amardeep Singh vs. Harveen Kaur the Supreme Court held that the waiting period of 6 months can be relaxed in exceptional situations.

Where can a couple file for mutual consent divorce?

The couple can file for a mutual divorce in the Family Court of the city where the couple resided together for the last time, i.e. their matrimonial home or where the marriage was solemnized or where the wife is currently residing.

Can a party withdraw his/her petition for divorce?

During the 6 month reconciliation period either of the parties can withdraw from a mutual consent divorce by filing an application before the court, stating that they no longer intend to get a mutual consent divorce.

Do the parties need to be physically present in the Court to obtain the decree of divorce?

  • The couple is required to be present in the court during the 1st and 2nd hearing.
  • The court may allow camera proceedings when the court is convinced that physical availability (attendance) of either or both the spouses cannot be scheduled.
  • The court has the complete discretion over this decision where it only decides after understanding and getting convinced from the facts of the case.

What can an aggrieved party do when their consent is obtained by coercion or force by the their spouse?

It is the responsibility of the court to appropriately examine and find out if the consent for divorce has been obtained maliciously or not.

However, if the court is unsuccessful to correctly determine if the consent for the divorce was given freely or not then such a divorce decree cannot and must not be regarded as a decree by mutual consent and therefore, the aggrieved party can file an appeal in the High Court to strike down such a decree and appropriately grant a mutual consent divorce.

How is child custody decided?

  • While obtaining a divorce through mutual consent both the parties are required to settle the issue of child custody.
  • Ordinarily, the mother takes the custody of the child who is younger than 12 years of age with reasonable visiting rights with the father, however, the same must be agreed by both the parties for the court to grant the same.
  • The parties can also opt for joint custody of the child where one of the parties has the physical custody of the child, but both of them have legal custody of the child.
  • When the Court is satisfied with what is best for the child, it will decide on the custody of the child.

How much time does it take to get a mutual consent divorce in India?

The entire mutual consent divorce procedure starting from the date of filing till the passing of the divorce decree can take around 6 months to 1-1.5 years at the most.

Note: This period of 6-18 months is exclusive of the waiting period to file for divorce.

How are issues related to maintenance and alimony decided in a mutual consent divorce?

  • The parties are required to mutually agree on an appropriate sum of alimony or maintenance amount which will either be given by either of the parties as the case may be.
  • This amount has to be agreed upon by both the parties to avoid any dispute that may arise in the future.
Note: Either party can withdraw their consent at any time before the decree of divorce is passed by the Court.

Legal Provisions:
  • Divorce laws for Hindus are governed under the Hindu Marriage Act, 1955.
  • Divorce laws for Christians are governed under the Indian Divorce Act, 1869.
  • Divorce laws for Muslims are governed under their personal laws of Divorce and Dissolution of Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.
  • Divorce laws for all the inter-religion marriages are governed under the Special Marriage Act, 1954.

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