Divorce is a procedure that ends a marriage between two adults and may be affected in accordance with various laws and regulations. For example, the Hindu Marriage Act, of 1955 governs Hindus, including Sikhs, Jains, and Buddhists, while the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872 govern Christians. Muslims are governed by the Muslim Women (Protection of Rights on Divorce) Act of 1986[1], and the Dissolution of Marriage Act of 1939. In addition to the aforementioned provisions, the Special Marriage Act of 1954 also regulates other marriages. It provides comfort.
Divorce by mutual consent is a type of divorce where both partners agree to end their marriage amicably and mutually agree on the terms and conditions of the separation, such as the division of property, the custody of children (if any), and the payment of alimony or maintenance. Both the husband and the wife may mutually agree to file for divorce. It is the most civilized method of ending a marriage.
Divorce by mutual consent is generally considered a less time-consuming, less expensive, and less acrimonious process compared to contested divorce, where one spouse files for divorce without the other party’s approval.
Conditions to File for Mutual Divorce
The following conditions must be satisfied before filing for a mutual divorce:
- Prior to submitting the petition for mutual divorce, both spouses must have been living separately for at least one year.
- To dissolve a marriage, both partners must consent to it and submit a joint petition to the family court.
- The conditions of the separation, including matters like child custody, property distribution, and alimony (if appropriate), must be agreed upon by both spouses.
- There cannot be any active criminal cases involving either spouse.
- The provisions of a divorce contract must be agreed upon by both spouses, and they both must sign the necessary documents to prove their consent.
Where to File a Divorce Petition
Applications for divorce can be submitted to the family court with jurisdiction over the region where:
- Location where a marriage had occurred.
- where the husband and wife recently resided
- Or location where the wife is residing at the time the petition is filed.
The specific family court will be determined by the couple’s residence’s location and any local, religious, or customary laws that apply.
Documents Required For Mutual Divorce to Process
The following documents are usually required to file for mutual divorce:
- Marriage Certificate: To demonstrate that the couple is legally wed, a copy of the marriage certificate is necessary.
- Address Proof: Address proof may be needed to prove the couple’s place of residency, including a passport, voter ID card, Aadhaar card, or utility bills.
- Photographs: Both spouses’ recent passport-sized photos may be needed.
- Proof Of Separation: A rental agreement or utility bills in either spouse’s name may be needed as proof that the couple has been living separately for at least a year.
- Settlement Agreement: A written document containing the conditions of the divorce, including child custody, property distribution, and alimony (if appropriate), must be signed by both parties.
- Income Tax Returns: Copies of both spouses’ income tax returns may be needed to prove their financial situation and level of income.
- Information about your occupation and income (pay receipts, letters of appointment)
- Information about owned property and assets
- Information about the wife and husband’s family
Procedure to File for Mutual Divorce:
Generally, the procedure involved in a mutual divorce process involves:
- Consult An Attorney: The first step is to consult with an attorney who specializes in family law to understand the procedures for submitting a mutual divorce petition and to prepare the necessary documentation.
- Filing the Petition: The next step is to file a joint petition for mutual divorce in the family court that has jurisdiction over the region where either spouse resides, along with the necessary papers and fees.
- First Hearing: The court will schedule a date for the initial hearing following the filing of the petition, and both spouses must appear. To assist in settling any disputes between the spouses, the court could also recommend counselling or mediation.
- Settlement Agreement: The details of the separation, including matters like child custody, property distribution, and alimony (if applicable), must be mutually agreed upon by the parties. Both spouses must sign a formal contract for it to be valid.
- Second Hearing: The court will review the settlement agreement during the second hearing to make sure the conditions are fair and reasonable. The divorce decree will be granted if the court finds the reasons for divorce and the settlement agreement to be sufficient.
- Final Decree: Following the issuance of the divorce decree, both spouses will be formally separated and free to remarry or embark on new ventures alone.
Divorce becomes final once the decree of divorce has been passed by the court.
Legal Provisions for Mutually Considered Divorce
The law has distinct provisions as per the marriage acts, which are:
- Section 13B of the Hindu Marriage Act of 1955 states that a separation must last at least a year.
- Section 28 of the Special Marriage Act of 1954
- Section 10A of the Divorce Act of 1869 (minimum separation period of 2 years)
- Section 32B of the 1936 Parsi Marriage Act
- And under the Christian and Muslim Marriage Act.
What Are the Advantages of Divorce by Mutual Consent
Divorce by mutual consent in India offers several advantages, including:
- Quick and Less Stressful: The process of mutual divorce is generally quicker and less stressful than a contested divorce as both spouses is willing to end the marriage and have agreed on the terms of their separation.
- Cost-Effective: Mutual divorce is generally less expensive than a contested divorce as there are no prolonged legal battles, and both parties can share the cost of legal fees.
- Control Over The Terms Of Separation: In mutual divorce, both spouses have control over the terms of their separation, including child custody, division of property, and alimony (if applicable), rather than leaving it up to the court to decide.
- Confidentiality: Mutual divorce proceedings are usually confidential, which means that the personal details of the separation do not become public records.
- Easier To Move On: Mutual divorce allows both spouses to move on with their lives more easily and without the emotional baggage that may come with a contested divorce.
Can Mutual Consent Be Withdrawn
Yes, before the court issues the final divorce decree, either spouse may withdraw their mutual consent for divorce at any time. Either spouse may withdraw consent to the divorce during the six-month cooling-off period by submitting a court application outlining their intention to get back together and carry on with their marriage.
The final divorce decree, however, cannot be withdrawn or revoked once it has been given by the court. Therefore, before starting the legal procedure, it is crucial for both partners to thoroughly analyze their decision to seek a mutual divorce and make sure they are completely informed of the consequences.
How Long Does It Take To Get Divorce by Mutual Consent
As per the Hindu Marriage Act, 1955, there is a mandatory waiting period of six months after filing the joint petition for divorce before the court can grant a divorce. This waiting period is given to the spouses to rethink their decision to divorce and to try and reconcile.
It usually takes between six months to one year to obtain a mutual divorce in India, provided that there are no major disputes or issues that require a longer legal process. However, it is important to note that the exact timeframe can vary depending on the specific circumstances of the case and the court’s workload.
Online Application of Divorce by Mutual Consent
A joint petition must be filed in the family court where the marriage was registered in order to seek a mutual divorce. Although some courts could let you file your petition online, getting a mutual divorce cannot be done wholly online.
However, a few online legal service providers might be able to help with the documentation preparation necessary to submit a joint petition for mutual divorce. These services could involve creating the petition, creating the required affidavits, and giving advice regarding the court procedure.
It is crucial to remember that even if these services could be practical and economical, it is best to speak with a divorce lawyer to make sure your rights and interests are protected during the procedure.
Additionally, it’s important to check the reputation and dependability of any internet service providers you select as well as their adherence to all relevant rules and laws.
Conclusion
In conclusion, mutual consent divorce is a somewhat quick and friendly approach for couples to end their marriage. In order to complete the procedure, the parties have to come to an agreement on important topics like alimony, child custody, and property division. Couples can complete the required papers, appear in court, and acquire their divorce decree within a few months with the aid of legal experts. Mutual consent divorce offers a mechanism for couples to leave their marriage with respect and dignity, even if it can be an extremely difficult period. Couples can begin the next chapter of their lives with a sense of closure by cooperating and prioritizing the needs of any children.
Read Our Article: What Is The Process Of Registering Marriage In Delhi Under Hindu Marriage Act?
