Mutual Consent divorce are those in which both the husband and the wife agree to divorce. It is a physically and mentally exhausting process, but it is much simpler than the long drawn-out litigation that goes on when neither of the spouses is in agreement. In this case, the court assumes that the husband and wife are willing to work together on Mutual Consent divorce matters. Ultimately, it’s mostly a matter of process.
Mutual Consent divorce procedures in India are governed by various Acts. If the couple is married under the Hindu Marriage Act, 1955, the rules of Mutual Consent divorce prescribed under this Act will apply. If the marriage was solemnized under the Special Marriage Act, 1954, the same would apply. All other divorces will be as per the Divorce Act, 1869.
As per Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple must have lived separately for at least one year before divorce proceedings can be initiated. However, the Divorce Act, However, in 1869 the couple were required to live apart for at least two years. Keep in mind that living separately doesn’t necessarily mean living in different places; The couple only has to prove that they are not living as husband and wife during this period.
- Filing of Petition
Both husband and wife will need a lawyer to handle the divorce case. The lawyer will ask them to file for divorce at one of the following places:
- Where both of them lived for the last time.
- Where both got married.
- Where the wife currently resides.
- Grant of first motion
Now that both the parties have filed the petition, they will have to record their statements in the presence of the judge in the district court. As mentioned earlier, it is assumed that both the parties wish to divorce of their own free will (i.e. by mutual consent). Therefore, the parties have to state that they have freely agreed to the Mutual Consent divorce. The parties must state their reasons for the divorce and the terms on which they have agreed to separate (visitation rights, custody, etc.). If the parties cannot attend the court, they may give power of attorney to another person (preferably a family member) to speak on their behalf. Once heard, the court approves the first motion. The information about the time period of separation will also have to be mentioned. The petition must be presented to and signed by a judge.
2. Cooling off period
The couple is expected to attempt reconciliation during the ensuing six to eighteen months, before filing a second motion, at which point the Mutual Consent divorce will be granted. Hence, the couple will have to wait for at least six months before approaching the court once again with the second proposal. If either of the spouses declares in the court that the other is non-cooperating in reconciliation, the court cannot grant Mutual Consent divorce.
3. Second offer
At the end of six months – and up to eighteen months – The couple can file a second motion and the judge will dissolve the marriage.
Section 10A of the Divorce Act, 1869 mandates that a Christian couple can apply for Mutual Consent divorce. so:
1. Filing of Petition
A petition must be filed by both the parties mutually agreeing that they cannot live together and seek divorce on the ground that they have been living separately for two years or above and have agreed mutually to give divorce.
2. Second proposal
The second proposal needs to be passed within six months to 18 months (minimum 6 months and maximum 18 months) of the consent that they have agreed to Mutual Consent divorce. If the petition is not withdrawn within the said time period, or a second resolution is passed by the couples, the court passes a decree of divorce, declaring that the marriage has dissolved.
- Address proof of husband and wife
- Marriage certificate
- 4 passport size photographs
- Evidence proving separation for more than one year
- Evidence proving unsuccessful attempts at reconciliation
- Income tax returns
- Details of assets owned by the husband and wife, both jointly and individually
Preparing for Mutual Consent Divorce Hindu Marriage Act in 2023
It is necessary for husband and wife to talk to each other. They must allow certain crucial matters, like maintenance, custody and visitation rights, and the finances separation. This means a lot of discussion before even getting a lawyer. Although trying hard to reach an agreement is inconvenient, it is important, because the other way (without mutual consent) is incredibly difficult and can take years.
Child Custody: You and your spouse will need to decide who will get custody of the child/children, or whether custody of the child/children will be shared. Any arrangement will be agreed to by the court, as long as it is mutually agreed upon.
Alimony: The amount of money to be paid by the husband to the wife or by the wife to the husband should be decided by the parties themselves. The money can be a lump sum amount or periodic payments. Usually, only wealthy people are offered lump sum settlements. You will remember that Hrithik Roshan had offered a settlement of ₹400 crore to Sussanne Khan.
Return of Objects: During a marriage, a lot is exchanged. Both parties can invest in property that is in the name of only one spouse; The ornaments of the wife may be in the possession of the husband. For the Mutual Consent divorce, all this must be presented independently of the courts.
Litigation expenses: The parties themselves have to decide how the litigation expenses should be divided. This will be especially important if one spouse is financially dependent on the other.
While such provisions have been abandoned in most First World countries, Indian courts are still compelled to attempt to bring couples together. This is despite the fact that husband and wife have filed a joint petition. This is as per section 34(2) of the Divorce Act, 1869.
Therefore, the courts cannot dissolve a marriage if:
(a) six to eighteen months have not elapsed since the presentation of the first petition;
(b) on hearing the parties, the Court is satisfied that the husband and wife have made a reasonable effort to reconcile – and have failed;
(c) the petition is not withdrawn by either party at any time before the passing of the decree.
If it takes more than 18 months for the couple to file a second petition, The courts will assume that the husband and wife have reconciled in their marriage. The most important matter in Mutual Consent divorce, as you would suspect, is consent to divorce.
During six months from the filing of the first petition, either of the spouses is free to withdraw the petition. However, after six months have elapsed, it is necessary for the couple to jointly withdraw their Mutual Consent divorce petition.