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
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
- 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
- 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
- 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.
In a recent judgement of Amardeep Singh vs. Harveen Kaur
Court held that the waiting period of 6 months can be relaxed in exceptional
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
- The court may allow camera proceedings when the court is convinced that
physical availability (attendance) of either or both the spouses cannot be
- The court has the complete discretion over this decision where it only
decides after understanding and getting convinced from the facts of the
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 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.
This period of 6-18 months is exclusive of the waiting period to file
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.
Either party can withdraw their consent at any time before the decree of
divorce is passed by the Court.
- Divorce laws for Hindus are governed under the Hindu Marriage Act, 1955.
- Divorce laws for Christians are governed under the Indian Divorce Act,
- 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.