The Supreme Court of India has recently allowed an important modification in the Hindu Marriage Act of 1955. It has waived off the statutory provision of a cooling period of 6 months before granting a divorce. Henceforth, a trial court can dispense with this period if there is no possibility of cohabitation between the estranged couple.
Introduction
In a mutual consent divorce, both husband and wife agree to the divorce. It is a demanding procedure, both mentally and physically, but a lot less complicated than the long-drawn litigation that follows when one of the parties does not consent to the divorce. All that remains is the formality of granting the mutual divorce because the court assumes that the couple has already decided important issues, such as child custody, maintenance, and alimony.
What Is Divorce With Mutual Consent And Contested Divorce?
Mutual divorce represents a legal separation process initiated when both spouses voluntarily seek separation after marriage, termed as Divorce with Mutual Consent. Both parties have the right to apply for this divorce jointly, presenting it as a more amicable means of ending a marriage.
When a couple decides to end their marriage by mutual agreement, they opt for a less intricate route compared to the prolonged legal procedures in cases lacking mutual consent. This method is quicker and more cost-effective. Mutual consent offers an efficient separation, saving time, effort, money, and averting unnecessary conflicts.
Divorce by mutual consent involves both partners willingly agreeing to peacefully part ways. Their consent covers all divorce terms, including maintenance, alimony, and child custody, if applicable.
In a contested divorce, the involved parties are unable to reach an agreement on crucial matters like child custody, property division, or spousal support. Consequently, the case proceeds to trial, where a judge or jury issues final decisions. This type of divorce is characterised by prolonged proceedings, and increased legal expenses. While disagreements may extend to the very question of divorce, a judge won’t compel a couple to remain married if one party desires to end the marriage.
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. Expecting it is 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.
Documents Required
- Address proof of husband and wife
- Marriage certificate
- 4 Passport-size photographs
- Evidence proving separation for over a year
- Evidence proving failed reconciliation attempts
- Income tax returns
- Details of assets owned by husband and wife, both jointly and individually
Procedure for Divorce with Mutual Consent
- 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:
- Where the two last resided. 2. Where the two were married. 3. Where the wife currently resides.
- Grant of First Motion Now that the two parties have filed the petition, they must record their statements in the presence of the judge. 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.
- 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 consent.
- 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.
Most Important Points To Remember While Divorce
Alumni/Maintenance
In case one partner struggles to cover daily expenses, the other is obliged to provide a one-time settlement. This settlement can be paid in one or two instalments, usually as agreed upon by both partners (husband and wife), commonly arranged in two or three instalments.
Property and Assets Settlement
Resolving property and asset ownership rights between the involved parties (Husband and wife).
Child Custody
Determining which partner receives custody of the child post-divorce.
Pending Litigation (if any)
Both parties must resolve any ongoing legal disputes on paper before initiating mutual consent divorce proceedings.
Divorce Court in Mumbai
Family Court, Bandra (Mumbai), BKC Road, Bandra Kurla Complex, Bandra East, Mumbai 400051 Phone: 022-659 1801
Cost of Divorce in Mumbai
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 consent divorce 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?
As per Section 13(B) of the Hindu Marriage Act, 1955, the divorce process involves two motions leading to a final decree. Initially, after at least a year of separation, both parties approach the family court for divorce through mutual consent, constituting the first motion. Following the court’s approval, a mandatory 6-month cooling period ensues for potential reconciliation. If reconciliation fails within this period, the parties file the second motion for divorce through mutual consent. Another joint statement on oath occurs, culminating in the family court granting the final decree of divorce. Hence, a minimum 6-month period is a requisite step in obtaining the final decree through mutual consent.
Conclusion
Hopefully, we have provided you with enough information relating to your concern, but if you would like any further assistance, feel free to leave a comment below or contact vakilsearch directly.
Frequently Asked Questions
What is the cost of mutual consent divorce in Mumbai?
The actual cost may vary based on the complexity of the case, additional legal assistance required, and court proceedings. For more clarity get in touch with our experts.
What are the conditions for mutual consent divorce?
For mutual consent divorce, both spouses must agree to end the marriage without coercion. They need to settle matters regarding alimony, child custody, and property division amicably. Compliance with the stipulations of the Hindu Marriage Act, 1955 is crucial, ensuring both parties willingly consent to dissolve the marriage through mutual agreement.
Can we get a mutual divorce immediately?
Mutual consent divorce doesn't happen immediately; it involves a mandatory waiting period. Typically, it takes about 6 to 18 months due to legal formalities and prescribed waiting periods mandated by law. This period allows for reflection, ensuring both parties are certain about the decision, fostering a fair dissolution process.
Is 1 year separation mandatory for mutual divorce?
A mandatory one-year separation isn't a strict requirement for mutual consent divorce. However, couples seeking this form of divorce are advised to live apart for a certain period, typically before filing. This separation helps establish the irretrievable
Can a court reject mutual divorce?
Courts might reject mutual consent divorce if conditions outlined by the law aren't met, like inadequate settlement regarding alimony, child custody, or property issues. Additionally, lack of genuine mutual consent or failure to adhere to legal procedures could lead to rejection. Court discretion plays a role in such cases.
Can we get divorce in 15 days?
Obtaining a divorce within 15 days is unlikely, especially for mutual consent divorce. Legal procedures, mandatory waiting periods, and court proceedings generally take longer, spanning around 6 to 18 months. Expedited divorces may occur in exceptional cases, yet they are rare due to mandatory legal formalities and deliberation periods.
Is one sided divorce possible in India?
In India, one-sided divorce, known as contested divorce, occurs when one spouse initiates the divorce without the other's consent, based on grounds like cruelty, adultery, or desertion. This process involves legal proceedings where the court decides based on evidence presented, but it's more complex and time-consuming than mutual consent divorce.
Can I get divorce after 2 days of marriage?
Getting a divorce after just 2 days of marriage is highly improbable. Legal procedures, including grounds for divorce and mandatory waiting periods, must be met. Fast-track annulments might occur due to exceptional circumstances like fraud or void marriages, but standard divorce processes typically take longer due to legal formalities and deliberation periods.
What is the fastest divorce in India?
The fastest divorce in India might occur through mutual consent. Expedited annulments may happen due to exceptional circumstances like void marriages or fraud, potentially concluding in a few months. However, usual divorce proceedings involve mandatory waiting periods and legal formalities, extending the process
