What is the process for mutual divorce in India? Learn about the steps involved in getting a mutual divorce in this article
Mutual divorce in India involves a streamlined procedure allowing couples to dissolve their marriage amicably. Key steps include filing a petition, fulfilling legal requirements, and submitting necessary documents. Different religious laws govern the process, and withdrawal of consent is also possible.
What Is Mutual Divorce?
Mutual divorce process in India requires both parties to agree to get divorced. To initiate a mutual divorce, both spouses must provide written consent to the divorce. If the couple has children, they must also make arrangements for custody and visitation. Once consent is obtained, the couple must go through a court proceeding to finalise the mutual divorce in India.
The Telangana High Court requested the Central government’s response regarding Section 10A(1) of the Divorce Act, which requires two years of separate living for mutual consent divorce among Christians in India. This Act is exclusive to the Christian community. Chief Justice Alok Aradhe and Justice Jukanti Anil Kumar addressed a petition jointly filed by a Christian couple seeking marriage dissolution based on personal reasons.
Conditions to File for a Mutual Divorce
To file for mutual divorce in India, couples must satisfy the following conditions:
- Both spouses must agree to the divorce.
- The couple must have been married for at least six months and have lived separately for at least six months before filing for a mutual divorce.
- The couple must meet all financial obligations that they accrued during their marriage.
- The couple must live apart for at least six months after the mutual divorce is finalized to preserve any property or marital assets that may be divided between them.
What Are the Different Religion Laws Regarding Divorce in India?
In India, divorce laws vary significantly across different religions, each governed by its own set of legal provisions and customs. Understanding these differences is crucial for navigating the legal process of divorce, as the rules and regulations can impact the rights and obligations of the parties involved. here is a detailed outline for the same:
1. Hindu (Including Buddhists, Jains, and Sikhs)
- Governing Law: Hindu Marriage Act, 1955
- Grounds for Divorce: Adultery, cruelty, desertion, conversion to another religion, mental disorder, venereal disease, renunciation of the world, and not heard alive for seven years.
- Mutual Consent Divorce: Both parties can file a joint petition for divorce by mutual consent after living separately for a year or more.
2. Muslims
- Governing Law: Dissolution of Muslim Marriages Act, 1939, and Muslim Personal Law (Shariat) Application Act, 1937
- Grounds for Divorce for Women: Cruelty, husband’s impotence, husband’s imprisonment, husband’s failure to perform marital obligations, husband’s disappearance, and other specific grounds outlined in the Dissolution of Muslim Marriages Act, 1939.
- Talaq: Historically, a husband could divorce his wife unilaterally by pronouncing’talaq’ three times, but this practice, known as Triple Talaq, was declared unconstitutional by the Supreme Court in 2019.
3. Christians
- Governing Law: Indian Divorce Act, 1869
- Grounds for Divorce: Adultery, conversion to another religion, cruelty, desertion for at least two years, and insanity.
- Mutual Consent Divorce: Available, but involves a waiting period and court proceedings.
Things to Consider for a Mutual Divorce
When contemplating a mutual divorce in India, there are a few things to keep in mind. Here are some tips:
- Discuss the options with your spouse as early as possible. The sooner you can come to an agreement on what steps to take, the smoother the mutual divorce process will be
- Have realistic expectations about the mutual divorce process. A mutual divorce does not always mean an easy or quick resolution. It can take some time and effort to go through the legal proceedings and come to a final agreement
- Communicate openly and honestly with each other throughout the process. This will help ensure that both parties are aware of their rights and responsibilities
- Keep copies of all relevant documents for future reference. Including any agreements or court filings made during the mutual divorce process will help ensure accuracy and transparency in the result.
Legal Requirements to Consider for a Mutual Divorce
If you are considering a mutual divorce, it’s important to be aware of the legal things and requirements to consider. Here is a rough process for mutual divorce in India:
- You and your spouse must agree to divorce. If one spouse does not want to proceed with the divorce, it will not be valid
- Your spouse must provide you with written notice of their intent to dissolve the marriage. This can be done through mail, fax, or email. If your spouse does not provide you with this notice, the divorce will not be valid
- Both spouses must have legal representation during the divorce proceedings. This can be an attorney or a mediator
- The court: https://districts.ecourts.gov.in/ will set a date for the divorce hearing. At this hearing, both spouses must present evidence that supports their case for a mutual divorce. The court will then decide if the marriage is dissolved based on this evidence.
- After the court decision is made, both spouses will receive a decree of dissolution of marriage.
Documents Required For Mutual Divorce in India
The following are the documents required for mutual divorce in India:
- A copy of the marriage certificate
- A copy of the address proof of both parties
- A copy of the income proof of both parties
- A copy of the birth certificate of any children of the marriage
- The Memorandum of Understanding (MoU)
- The joint petition for divorce
What is the Mutual Divorce Procedure in India?
The following is a step-by-step guide to the mutual divorce in India procedure:
- Draft a Memorandum of Understanding (MoU): An MoU is a legal document that outlines the terms of the divorce, such as the division of property, alimony, and child custody.
- File a joint petition in the family court: The joint petition must be signed by both parties and must include the MoU.
- First motion hearing: At the first motion hearing, the court will verify that both parties have freely consented to the divorce and that they have understood the terms of the MoU.
- Cooling-off period: After the first motion hearing, there is a cooling-off period of six months. During this time, the parties are free to withdraw their consent to the divorce.
- Second motion hearing: After the cooling-off period, both parties must appear in court for the second motion hearing. At this hearing, the court will finalize the terms of the divorce and grant the final decree of divorce.
How Much Time Does It Take to Get Final Divorce By Way Of Mutual Consent?
The time it takes to get a final divorce by way of mutual divorce in India typically varies from six to eighteen months. This is because the court requires a cooling-off period of six months between the filing of the petition and the first motion, and another six months between the first and second motions. During this time, the parties are free to withdraw their consent to the divorce.
However, there are some cases where the court may grant a divorce without a cooling-off period. These cases typically involve exceptional circumstances, such as if one of the parties is suffering from a serious illness or if there is a threat to the life of one of the parties.
Can Mutual Consent Be Withdrawn?
It is possible for one spouse to decide to change their mind and want to keep their marriage intact. In these circumstances, one of the parties may apply to the court, declaring their desire to revoke their consent to a divorce in light of their willingness to give their marriage another try. The court where the party is applying for a decree must be the same court where the divorce petition is currently standing. A court has the authority to dismiss a divorce petition if both parties to it agree to withdraw the request amicably.
Conclusion
Mutual divorce in India process that can be completed relatively quickly and without much drama. The two spouses involved will need to come to an agreement on all of the details of the divorce, including who will receive what property, how child custody and visitation will be handled, and any financial settlements.
Once all of these details have been agreed upon, a mediator or lawyer can help guide both parties through the formal separation process. For more details, reach out to Vakilsearch.
FAQs
Can mutual divorce be done in 3 months?
No, mutual divorce cannot be done in 3 months. The minimum time it takes to get a final divorce by way of mutual consent in India is six months. This is because the court requires a cooling-off period of six months between the filing of the petition and the first motion, and another six months between the first and second motions.
Is mutual divorce expensive?
The cost of mutual divorce varies depending on the complexity of the case and the location of the court. However, it is generally less expensive than a contested divorce. The typical cost of mutual divorce in India ranges from Rs. 10,000 to Rs. 50,000.
Can we marry after mutual divorce?
Yes, you can marry after mutual divorce. However, there is no waiting period after a mutual divorce, so you can remarry as soon as the final decree of divorce is granted.
Who pays in mutual divorce?
The terms of alimony payments are typically agreed upon by the parties in the Memorandum of Understanding (MoU). The MoU can specify how much alimony will be paid, how often it will be paid, and for how long.
Can I file mutual divorce alone?
No, you cannot file mutual divorce alone. Both parties must file a joint petition for divorce in the family court.
What should you consider before a mutual divorce?
Before getting a mutual divorce, it is important to consider the following: The terms of the divorce, such as the division of property, alimony, and child custody The impact of the divorce on your children Your financial situation Your emotional well-being It is also advisable to consult with a lawyer to ensure that your rights are protected.
Is mutual divorce safe?
Mutual divorce is a safe and legal way to end a marriage. The process is designed to ensure that both parties are fully informed of their rights and that they have freely consented to the divorce.
What is mutual divorce and how does it differ from contested divorce in India?
Mutual Divorce: Mutual divorce in India occurs when both spouses agree to end their marriage amicably. They mutually decide on terms such as division of assets, alimony, and child custody (if applicable). Both parties file a joint petition stating their desire to dissolve the marriage. Contested Divorce: In contrast, contested divorce involves one spouse filing for divorce without the consent of the other or when both parties cannot agree on terms. This often leads to legal proceedings, where the court decides on matters like asset division, alimony, and child custody.
How much money is required for mutual divorce in India?
The cost of mutual divorce in India can vary depending on factors such as legal fees, court filing fees, and any additional expenses related to documentation or legal representation. Generally, the cost can range from a few thousand rupees to several lakhs, depending on the complexity of the case and the lawyer's fees involved.
What are the rules for mutual divorce?
The rules for mutual divorce in India involve both spouses consenting to end their marriage and agreeing on terms such as division of assets, alimony, and child custody (if applicable). They must file a joint petition in the appropriate family court stating their mutual consent for divorce. The court may also require both parties to undergo counselling or mediation to resolve any disputes amicably.
Do I need a lawyer to file for mutual divorce in India?
While it's not mandatory to hire a lawyer for a mutual divorce in India, it's highly recommended to seek legal advice and representation to ensure that your rights and interests are protected during the process. A lawyer can assist in drafting the petition, negotiating terms with the other party, and representing you in court proceedings if necessary.
Can we appeal the court's decision in a mutual divorce case?
In a mutual divorce case, where both parties have agreed to the terms of divorce, there is generally no provision for appealing the court's decision. Once the court grants the divorce decree based on mutual consent and the agreed-upon terms, it is legally binding and final. However, if there are issues related to the enforcement of the terms of the divorce decree, parties may seek legal remedies through appropriate legal channels.
