Divorce By Mutual Separation

Mutual separation are those where both husband and wife agree to the divorce. It is a physically and mentally demanding procedure, but it is much simpler than the long-drawn litigation that follows when there is no consent from either spouse. In this case, the court assumes that the husband and wife are willing to work together on divorce matters. In the end, it's mostly a matter of procedure.

Introduction

When a Hindu marriage ends by mutual separation, Section 13B of the Hindu Marriage Act, 1955 stipulates a period of separation of 18 months — one year under Section 13B(1) and six months under Section 13B(2).

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.

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 prove that they have not been living as husband and wife during this time period.

What Is Divorce With Mutual Consent and Contested Divorce?

A legal process known as Mutual Divorce allows both spouses to voluntarily separate after marriage. This form of divorce is initiated when both the husband and wife agree to terminate their marriage by mutual consent, making it a civilised and less complex method of marital dissolution.

When a couple mutually decides to end their marriage, they can opt for mutual consent divorce, which is considerably less complicated compared to contentious legal battles. This method is known for its efficiency and cost-effectiveness, providing a faster resolution while minimising unnecessary disputes, time consumption, and financial strain.

Divorce by mutual consent is a peaceful separation where both parties willingly agree to the terms and conditions of the divorce, including matters such as maintenance, alimony, and custody of children if applicable. The legal provisions governing mutual consent divorce can be found under Section 13-B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954.

According to these provisions, couples seeking divorce under the Hindu Marriage Act of 1955 must wait for a minimum of one year from the date of separation. During this period, they must demonstrate that they have lived separately for one year or more and have been unable to reconcile as husband and wife. It is not mandatory for the parties to reside in different households, but proving that they have not functioned as a married couple during the separation can be challenging.

When One Can Apply for Mutually Consented Divorce?

The primary requirement for a mutual consent divorce is the willingness of both spouses to separate. Additionally, there are essential considerations to be mindful of before initiating the divorce process:

1. The husband and wife must have lived apart for a minimum period of one year
2. Both spouses should mutually agree on the decision to divorce
3. The couple should be in a situation where they find it impractical to continue living together
4. A minimum duration of one year should have passed since the date of marriage.

Documents Required

1. Address proof of husband and wife
2. Marriage certificate
3. 4 Passport-size 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

Procedure for Divorce With Mutual Separation

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.
4. 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 . 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.

2. 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 uncooperative in reconciling, the court may disallow divorce with mutual separation.

3. 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 Separation in Christian Marriages

Section 10A of the Divorce Act, 1869 decrees that the Christian couple can apply for divorce by mutual separation. 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 separation 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.

Preparing for Mutual Separation 

A mutual separation 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. While trying hard to reach an agreement is uncomfortable, it is important, since the other route is incredibly difficult and could take years.

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 ₹ 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:

• After submitting the first petition, six to 18 months have not elapsed;
• On hearing the parties, the courts are satisfied that the spouses have made a reasonable attempt  and failed  to reconcile;
• 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 separation, as you would suspect, is consent to the divorce.

Cost of Divorce 

The cost of filing the petition for divorce is nominal in India, at around ₹ 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 paperwork.

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

How Much Time Does It Take to Get Final Divorce Through Mutual Consent?

In accordance with Section 13-B of the Hindu Marriage Act,, 1955, the process for obtaining a final decree of divorce involves two distinct motions. In the initial stage, after at least one year of separation, the parties appear before the family court to seek a divorce through mutual consent. During this first motion, both parties provide a joint statement on oath.

Following the approval of the first motion by the family court, a mandatory cooling-off period of six months is imposed by law. This period serves as an opportunity for the parties to potentially reconcile their differences and resume married life, as the divorce has not been finalised yet. If reconciliation efforts are unsuccessful within the six-month period, both parties can proceed by filing a second motion petition for divorce with mutual consent.

The second motion involves another joint statement on oath, and upon its submission, the family court grants the final decree of divorce. Therefore, it is emphasised that a minimum six-month duration is compulsory to obtain the final decree of divorce through mutual consent.

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.

Conclusion

Additionally, in a mutual separation , it is much easier to get fair custody terms for children. It is possible to have joint custody rights or shared parenting rights. When it comes to the financial aspects of the divorce, you will need to determine how the money will be divided, alimony payments, and expenses for the children. It is not necessary for the husband to take sole responsibility for this. Based on a person’s capacity to pay, it can be considered.

Frequently Asked Questions

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