What is Mutual Divorce?
Mutual divorce, as the name implies, is when both parties wish to separate amicably. The conditions required under section 13B of the Hindu Marriage Act are that the husband and wife should be living separately for a period of one year or longer, that they are unable to live together, and that both husband and wife have mutually agreed that the marriage has totally collapsed.
A Divorce with Mutual Consent is a relatively swift process in court; however, divorce may not be granted instantly. After filing for divorce, the court may ask the couple to reconcile their differences over six months and make the marriage work. Depending on the circumstances, this period may be reduced. If either party is overseas, the proceedings may be completed using video-conferencing software as well.
Procedure for Mutual Divorce
Filing a Petition
We will connect you to lawyers, who will file a petition in court containing a joint statement by both parties that, due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court.
Second Motion Petition
After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they must re-appear in court.
After hearing from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree.
Documents required for Mutual Divorce
- Address proof of husband/wife
- Marriage certificate
- Four passport size photographs of marriage of husband and wife
- Evidence proving spouses are living separately since more than a year
- Evidence relating to the failed attempts of reconciliation
- Income tax statements of the spouse for the last three years
- Details of profession and present remuneration of the spouse
- Information relating to family background
- Details of properties and other assets owned by the spouse
FAQs on Mutual Divorce
Divorce by Mutual consent saves time, money and energy for both. It leaves no room for unnecessary quarrel and most importantly avoids washing your dirty linen in public.
There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.
The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage. They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.
In the family court of the city/district were both the partners lived together for the last time.
After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months.
During the period of 6 months when the petition is pending in the court, any of the parties is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. In such circumstances, the court grants no divorce decree.
After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.
Remarriage without a divorce is a punishable offence with seven years imprisonment.
Depending on the nature of decree, after the expiry of three months from the date of decree, if no notice of appeal is received by the person remarrying from the other person.
The period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
NRIs/non Indian couples who got married in India can file for a mutual divorce in India. The couple can also file a divorce petition in a foreign country, under the laws of that country in which the couple resides, but the decree passed by foreign courts should not be inconclusive of Sec 13 of the Civil Procedure Code, 1908. Hence, it is subject to discretion of the Indian Courts, if challenged otherwise.
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