Mutual Consent Divorce: Steps and Requirements in India

Mutual Consent Divorce seems to be a less painless form of divorce, instead of both parties arguing with each other in the courtroom. Read on to know more about mutual consent divorce.

The process of Mutual Consent Divorce is when the marriage between two adult spouses ends. This may be done under different laws, such as Hindus, including Jains, Buddhists, and Sikhs, as per The Hindu Marriage Act,1955.  

There are separate laws for different religions. To allow for mutual divorce, Section 13B was added to the Hindu Marriage Act 1976. Anyone filing for divorce needs to know the 5-step process for filing a mutual consent divorce.

Section 13B: Mutual Consent for Divorce

The Marriage Law Amendment Act (1976) added this provision of Mutual Consent Divorce. It was not originally included in the Hindu Marriage Act. Section 13B is the same as Section 28 of the Special Marriage Act (1954) and is based on the same grounds. This provision can be used to help parties who were married before or after the Amending Act, and they may seek assistance in getting a divorce.

This section explains how to petition a district court for Mutual Consent Divorce. Both spouses must file the petition within one year of each other. This means they no longer live together, or they have been unable to live together for at least one year.

Section 13B (2) states that the parties must wait at least six months after the date they present their petition. After the end of 18 months, the parties should jointly make a move forward to the court. If the court finds that all facts are correct, it may grant the petition for divorce.

Conditions to Submit a Mutual Consent Divorce

Following the provisions of Section 13B in the Hindu Marriage Act, 1955, the following conditions must be fulfilled to file an agreement to divorce:

• Each spouse has to be living separately for a minimum of one year
• The husband and wife are in agreement that their marriage can be dissolved
• Each spouse feels that they can’t live together
• The parties agree to file jointly for a divorce without any influence.

Step-By-Step Procedure for Mutual Consent Divorce

• Step 1: Filing the Petition in the Family Court

Both spouses present a joint petition to the family court to dissolve the marriage and to obtain a divorce decree. This is because they are unable to live together. They have either agreed to end the marriage or have lived apart for at least one year. Both parties must sign the petition.

• Step 2: Appearance in Front of the Family Court Judge for the First Motion for Divorce

Each party will appear in court with their legal counsel. The family court judge will review the contents of the petition and all documents. The court may try to reconcile differences between spouses. However, if that is not possible, the matter will continue.

• Step 3: Oath Statement

After reviewing the entire application, the court can order the parties’ statements to be recorded under oath.

• Step 4: Approval of the First Motion Order

The court will issue an order regarding the first motion. After that, both parties can wait six months before filing the second motion. You can file a second motion within 18 months of the date that the divorce petition was presented to the family court.

• Step 5: Second Motion Hearing and Final Decree

After the parties decide to continue with the proceedings and appear for the second motion, they will proceed with the final hearings. This includes the parties appearing before the family court and recording their statements.

After hearing from the parties, the court can issue a decree declaring that the marriage has been dissolved if it is satisfied that the petition’s contents are true.

Once the court has issued the decree of divorce, the divorce is final.

What Information, Materials, or Documents are Compulsory for Mutual Consent Divorce?

For a divorce by mutual consent, the following documents are necessary:

1. Attestation of husband
2. Proof of the wife
3. Information about the professions and current earnings of husband and wife
4. Certificate of Marriage
5. Information about the family background
6. Photographs of husband and wife in marriage
7. Evidence to show that the husband/wife have lived apart for at least one year
8. Evidence of failed reconciliation attempts
9. Statements on income tax
10. Information about the property and assets of each party

Depending on the facts and circumstances additional documents may be necessary.

Information about Alimony and Maintenance

During divorce, if Aimony has been granted by the court to the wife, which is most likely the case in many divorce proceedings, the following things need to be kept in mind:

1. The husband must pay his wife by the 10th of each month. After considering all facts and circumstances, the court may issue orders directing the husband to pay such maintenance at a later date.
2. If the wife has a bank account, the husband will have to make the payment in her account by the 10th of each month.
3. If the payment cannot be made directly to the wife/child, counsel can help you. The husband can deposit a draft/crossed cheque in the court registry.
4. The court will forgive a default in the first payment. A penalty of up to 25% on the amount of monthly maintenance can be imposed by the court if you don’t initiate the second payment for a valid reason.
5. The penalty for defaulting on the third or fourth month might increase to 50% of the monthly maintenance amount.
6. The court is obliged to make sure that the order for maintenance is valid and provides support to the wife.
7. If the interim maintenance has been paid and the spouse has been informed of the litigation expenses, a written statement must be filed within a given time.
8. When imposing a penalty for defaulting on payment, the court must consider the nature of the husband’s employment. Husbands having irregular employment/earnings are more likely to default on payment.

Conclusion

A divorce doesn’t necessarily have to be tedious or straining. With the right guidance and instructions, it could be your way to independence and life you will look forward to. In this article, you’ll find all answers relating to a mutual consent divorce and what steps you could take to prepare for it.