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How To Take Divorce By Mutual Consent In India

Divorce is a process by which the marriage between two adults comes to an end which may be solemnized under different laws like Hindus which includes Sikhs, Jains, Buddhists are governed by the Hindu Marriage Act, 1955 while Christians are governed by Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872.The Muslims are governed by personnel laws of Divorce and

also, the Dissolution of marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) act, 1986. Apart from the said laws, other marriages are governed by the Special Marriage Act, 1954. It has brought relief. We recommend that mutual divorce is a better option compared to the contested divorce. It saves time, energy, money, and avoidable toxicity.

What Is Divorce With Mutual Consent And Contested Divorce?

Mutual Divorce is a legal process of separation, when both the husband and wife want to separate with their own will after marriage, is called at Divorce with Mutual Consent. Both husband and wife can apply for the divorce by mutual consent. It is the most civilized way of termination of a marriage.

When the couple want that their marriage came to an end, they can agree to terminate the marriage by mutual consent. It is much less complicated than the long-drawn litigation that follows when there is no consent from either husband or wife. It is the fastest and inexpensive way of termination of a marriage. Mutual consent is the best way of separation as it saves time, energy, money and avoids unnecessary quarrel.

Divorce by mutual consent basically means when husband and wife gives their consent for a peaceful separation with each other. While giving their consent for the mutual divorce, both husband and wife should agree to all terms and conditions of divorce regarding maintenance and alimony or custody of children if any.

The provisions regarding divorce with mutual consent are given under section 13-B of the Hindu Marriage Act, 1955 and section 28 of the special marriage act, 1954. Parties intending to dissolve marriage under Hindu Marriage Act are required to wait for at least one year from the date of Separation.

They have to show that they have been living separately for a period of one year or more before the presentation of the petition of divorce and that during this period of separation they have not able to live together as husband and wife. It is not necessary that parties must be living under separate roof. They may be living in the same house but not as husband and wife. However, it becomes tough to convince the same.

Necessary Ingredients For Mutual Consent Divorce

  1. The parties are living separately for one year or more.
  2. They have not been able to live together.
  3. They have mutually consented to dissolve their marriage.
  4. The parties need to wait for six months after the grant of first motion, to file second motion petition for mutual consent divorce.

Most Important Points To Remember While Divorce:

Important issues to be settled on paper by way of memorandum of understanding before proceedings:
  • Alumni/Maintenance:
    If one of the partners is unable to meet his/her daily expenses then other needs to pay him/her a onetime settlement amount. Which may be paid in one or two installments. It is subject to mutual understanding between the partners (husband and wife), usually it is paid in two or three installments.
  • Settlement of Property and Assets:
    Settling the ownership rights of property and asset between the parties (Husband and wife).
  • Child Custody:
    Which partner will get the child custody after divorce
  • Pending Litigation (if any):
    Both the Parties must settle the ongoing pending litigation on paper before proceeding for mutual consent divorce.

First Step towards mutual consent divorce
Spouses should talk to each other about the future course. If both spouses reach the conclusion that marriage is not workable, they should ease out the tension surrounding them. They should accept that their marriage has broken down. Forget the fear of society. Nobody knows the situation better than husband and wife themselves.

Custody of Child in Mutual Consent Divorce
If there are children involved, the spouses should decide among themselves about Custody of children and their visitation rights. They can discuss interim custody during summer and winter vacations and other holidays. Both parents are equally competent to take custody of the children. It is the understanding and agreement between parties that prevail. Parties can have an understanding of joint custody or shared parenting in the mutual consent divorce process. This can save parents and children from avoidable suffering.

Financial Settlement in Mutual Consent Divorce
The next important aspect is a financial settlement. There are various aspects of financial settlement which includes:

alimony, maintenance, house, education expenses, higher education expenses, a marriage of children, stridhan, joint investments, joint accounts and many other. As mutual consent divorce lawyers, we provide a platform for parties to discuss these issues in a calm atmosphere and reach their own solutions. We as mutual consent divorce lawyers provide different options using our vast experience in the field to bring settlement. Sometimes, emotions between spouses are running so high that logic fails.

When One Can Apply For Mutually Consented Divorce?

Husband and wife both should be willing to get separated is the first and foremost rule when it comes to a divorce with mutual consent. Also following things, one should be aware of before filing a divorce.

Place of filing Mutual Consent Divorce:
  • Place where marriage had taken place.
  • Place where husband and wife last resided together.
  • Place where the wife is residing at the time of filing of the Petition.

Process For Filing Divorce By Mutual Consent

  1. Filing of the Petition in the Family Court
    Joint petition for dissolution of marriage for a decree of divorce is presented to the Family Court by both the spouses on the ground stating that they have not been able to reconcile the differences and live together. Thus, have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more. This petition has to be signed by both the parties.

    Requirement of Documents for filing Mutual Divorce Petition:
    • Address Proof - Husband and Wife.
    • Identity Proof � Husband and Wife.
    • Two Passport Size Photographs- 1husband and Wife
    • Four Photographs of Marriage.
    • Marriage Card.
    • Memorandum of Understanding.
    • Evidence of Staying separately for a year.
    • Marriage Certificate (If registered)
  2. Appearance before the Family Court Judge for First Motion for Divorce
    Both the parties will enter their appearance in the Court along with their legal counsels. Family Court Judge will go through the contents of the petition along with all the documents presented in the Court. Court may attempt to reconcile the differences between the spouses, however, if this is not possible, the matter proceeds further.
  3. Joint Statement on Oath
    After going through the contents of the application, Court may order the party's joint statements to be recorded on oath and joint statement are signed by both the parties along with their respective counsels and then First motion is passed.
  4. First Motion order is passed, 6 Months Time period is given for the Second Motion
    An order on the first motion is passed by the court. After this, a six months cooling period is given to both the parties to a divorce, before they can file the second motion. The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.
  5. Second Motion hearing and Final Decree
    Once the parties have decided to go further with the proceedings and appear for the second motion, they proceed with the final hearings. This includes parties appearing and recording of joint statements before the Family Court.

If the court is satisfied after hearing the parties that the contents in the petition are true and that there cannot be any possibility of reconciliation and cohabitation and the issues pertaining to alimony, custody of children, properties, pending litigations etc are settled, Court may pass a decree of divorce declaring the marriage to be dissolved.

Divorce becomes final once the decree of divorce has been passed by the court.

How Much Time Does It Take Place To Get Final Divorce By Way Of Mutual Consent?

As per sec-13(B) of Hindu Marriage Act, 1955, there are two motions to get a final decree of divorce. When Parties comes first time, on completion of at least one year of separation, before the family court to seek divorce by way mutual consent and joint statement on oath are held in the family court.

Then this is called first motion and when first motion is allowed by the family court thereafter as per the law both parties are required to wait for minimum 6 moths of cooling period to reconcile the dispute and may again live together as husband and wife as divorce was not yet and if parties fails to reconcile till 6 months then both parties may again come by way of filing the second motion petition for divorce with mutual consent this second petition is called the second motion.

And again joint statement on oath takes place then after signing the joint statements the final decree of divorce is granted by the family court. Therefore, in the view of above-mentioned discussion it is said that minimum 6 months period is mandatory to get the final decree of divorce by way of mutual consent.

Can Mutual Consent be Withdrawn?
Before passing a decree of mutual consent divorce, either of the parties may withdraw his/her consent because the consent of both the parties are necessary at the time of second motion. Either Husband or wife can withdraw consent before filing the second motion petition. However, the court have come down heavily on parties who have misused first motion to take some advantage.

Further as per the judgement passed by the Hon'ble Delhi High Court, in the matter if Rajat gupta vs Roopali Gupta, in 2018, the withdrawal of consent after recording of statement in first motion may result in initiation of proceeding under contempt of court, Act 1971 against the defaulting party.

Written By: Sparsh Karnwal or Ph no: +91-9717705300

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