Divorce by Mutual Consent

Last Updated at: October 22, 2019
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divorce mutual consent

A mutual consent divorce is one in which both husband and wife agree to the divorce. It is a demanding procedure, both mentally and physically, but much less complicated than the long-drawn litigation that follows when there is no consent from either husband or wife. This is so because the court assumes that the husband and wife are willing to co-operate on matters relating to the divorce. What remains is rather procedural.

The procedure for divorce in India is governed by different Acts. In case the couple was married under Hindu Marriage Act, 1955, the rules for divorce set under this Act would apply. If the marriage was solemnised under Special Marriage Act, 1954, then it would apply. All other divorces would be in accordance with Divorce Act, 1869.

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Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954 require the couple to be living separately for at least one year before divorce proceedings can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years. Do note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.

Procedure for Divorce with Mutual Consent

1. Filing the Petition
The husband and wife will both need a lawyer to handle the matter of the divorce. The lawyers will have them file for the divorce at one of the following places:
1. Where the two last resided.
2. Where the two were married.
3. Where the wife currently resides.

2. Grant of First Motion
Now that the two parties have filed the petition, they must record their statements in the presence of the judge at a district court. As noted previously, it is assumed that the two parties wish to get a divorce of their own volition (i.e. with mutual consent). Therefore, the parties need to state that they agree to the divorce freely. The parties will be required to state their reasons for the divorce and the terms on which they have agreed to separate (visitation rights, custody, etc). In case the parties cannot be in attendance at the court, they may grant power of attorney to any other person (preferably a family member) to speak for them. Once heard, the court grants the First Motion. Information about the time period of separation will also need to be mentioned. The petition will need to be submitted and signed before the judge.

3. Cooling-off Period
The couple is expected to attempt reconciliation during the ensuing six to eighteen months, before they file the second motion, at which point the divorce will be granted. Therefore, the couple must wait at least six months before they can approach the courts once again with the second motion. If either the husband or wife declares to the court that the other was un-cooperative in reconciling, the court may disallow divorce with mutual consent.

4. Second Motion
With the end of six months — and up to eighteen months — the couple can file the second motion and the judge will dissolve the marriage.

Divorce by Mutual Consent in Christian marriages

The section 10A of the Divorce Act, 1869 decrees that the Christian couple can apply for divorce by mutual consent. Accordingly:

1. Filing the Petition
A petition needs to be filed by both parties mutually agreeing that they cannot live together and want a divorce on the grounds that they have been living separately for two years or more and have mutually agreed to separate.

2. Second Motion
A second motion needs to be passed within six months to 18 months (minimum 6 months and maximum 18 months) agreeing that they mutually consent to the divorce. If the petition is not withdrawn within the said time period, or a second motion is passed by the couples, the court passes a decree of divorce, declaring that the marriage is dissolved.

Documents Required

1. Address proof of husband and wife
2. Marriage certificate
3. 4 Passport-sized photographs
4. Evidence proving separation for over a year
5. Evidence proving failed reconciliation attempts
6. Income tax returns
7. Details of assets owned by husband and wife, both jointly and individually

Cost of Divorce in Mumbai

The cost of filing the petition for divorce is nominal in India, at around Rs. 250. The main cost, of course, is the advocate fee, which varies significantly with the advocate you choose. Every lawyer will charge you separately per appearance and for any consultation and paper work.

A mutual consent divorce is likely cost anywhere from Rs. 5,000 to Rs. 50,000, depending on the complications of the case and the experience of the lawyer.

Preparing for Mutual Consent Divorce

A mutual consent divorce requires the husband and wife to be on talking terms. They must agree on a number of important matters, such as maintenance, custody and visitation rights and the separation of finances. This means much discussion even before getting a lawyer. Expect it to uncomfortable, but it is important to try hard to reach an agreement, because the other route (without mutual consent) is an enormously difficult one that could end up taking years. Furthermore, in a mutual consent divorce, it is much easier to get fairer terms in case of custody of children. It is possible to have shared parenting or joint custody rights. As for the financial aspects of the divorce, you would need to decide the alimony, expenses of the children and how the money will be transferred. It is, of course, not necessary that the husband be solely responsible for this. It can be based on capacity to pay.

What Needs to Be Agreed Upon

Custody of Child: You and your spouse must decide who will get custody of the child/children, or if custody of the child/children is to be shared. Either arrangement will be agreed to by the court, so long as it’s been mutually agreed to.

Alimony: The money that will be given to the wife by the husband or the husband by the wife must be decided by the parties themselves. The money can be a lump-sum amount or periodical payments. Typically, only the wealthy offer a one-time settlement. You may remember Hrithik Roshan offering a Rs. 400 crore settlement to Susanne Khan.

Return of Items: In the course of a marriage, much is interchanged. Both parties may invest in a property that is only in the name of one spouse; the jewellery of the wife may be in the possession of the husband. For a divorce to be mutual, all of this needs to be submitted independent of the courts.

Litigation expenses: The parties must themselves decide how litigation expenses should be divided. If one spouse is dependent on the other financially, this would be particularly important.

Reconciliation Necessary

While such provisions have been abandoned in most first-world countries, the Indian courts are still forced to attempt to bring the couple together. This despite the fact that the husband and wife have submitted a joint petition. This is as per Section 34(2) of the Divorce Act, 1869.

Therefore, the courts cannot dissolve a marriage if:

(a) After submitting the first petition, six to 18 months have not elapsed;

(b) On hearing the parties, the courts are satisfied that the spouses have made a reasonable attempt — and failed — to reconcile;

(c) The petition is not withdrawn by either party at any time before passing the decree.

If the couple takes longer than 18 months to file the second petition, the courts will assume that the husband and wife have reconciled their marriage. The most important matter in a mutual consent divorce, as you would suspect, is consent to the divorce.

Withdrawal of Petition

During the six months after the filing of the first petition, either spouse is at liberty to withdraw the petition. However, once six months have elapsed, it is necessary for the couple to jointly withdraw their consent to the divorce petition.

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    A lawyer with 14 years' experience, Vikram has worked with several well-known corporate law firms before joining Vakilsearch.