Obtaining a divorce by mutual consent in India is a straightforward process designed to be less adversarial and quicker compared to contested divorces. This method requires both spouses to agree on key aspects such as alimony, child custody, and property division. Below is a detailed guide on how to apply for a divorce by mutual consent and the legal procedure involved:
Step-by-Step Process for Divorce by Mutual Consent
1. Agreement on Key Terms
Before filing for divorce, both parties must mutually agree on the following:
- Alimony/Maintenance: Whether one spouse will pay alimony or maintenance to the other.
- Child Custody: Custody and visitation rights of any children from the marriage.
- Division of Property: Distribution of assets and liabilities.
2. Joint Petition Filing
Both spouses must jointly file a petition for divorce by mutual consent. This petition is filed under Section 13B of the Hindu Marriage Act, 1955, or corresponding provisions under other applicable laws such as the Special Marriage Act, 1954.
Contents of the Petition
The petition must include:
- Statements of both parties agreeing to the divorce.
- Details of their marriage (date and place).
- Agreement on alimony, child custody, and property division.
- A declaration that they have been living separately for a period of one year or more.
- A declaration that they cannot live together and have mutually agreed to dissolve the marriage.
3. Filing the Petition
The petition is filed in the family court of the district where:
- The marriage was solemnized.
- The couple last resided together.
- The wife currently resides.
4. First Motion Hearing
After filing the petition, both parties must appear before the court for the first motion hearing. During this hearing, the court records the statements of both parties and reviews the petition and agreements.
Cooling-Off Period
Following the first motion, there is a mandatory cooling-off period of six months. This period is given to the couple to reconsider their decision. The maximum period for the second motion is 18 months from the date of filing the first motion.
5. Second Motion Hearing
After the six-month cooling-off period, if both parties still wish to proceed with the divorce, they must file for the second motion. This involves appearing before the court again and reaffirming their consent to the divorce.
Waiver of Cooling-Off Period
In certain cases, the cooling-off period can be waived if the court is convinced that the couple has settled all issues amicably and there is no chance of reconciliation.
6. Final Hearing and Decree
During the second motion hearing, the court will:
- Verify the continued consent of both parties.
- Ensure that all mutual agreements on alimony, child custody, and property division are fair and followed.
- Record final statements of both parties.
If the court is satisfied, it will pass a decree of divorce, officially dissolving the marriage.
Legal Requirements and Considerations
- Living Separately: The parties must have been living separately for at least one year before filing the petition.
- Mutual Agreement: Both parties must consent to the divorce without any coercion or undue influence.
- Cooling-Off Period: While the law mandates a six-month cooling-off period, it can be waived by the court under special circumstances.
Conclusion
Divorce by mutual consent is an efficient way for couples to amicably end their marriage. By mutually agreeing on key aspects and following the prescribed legal procedure, both parties can ensure a smooth and less contentious divorce process. This approach not only saves time and legal expenses but also helps in maintaining a cordial relationship post-divorce, especially when children are involved.
This comprehensive guide outlines the detailed process of obtaining a divorce by mutual consent in India, ensuring that couples are well-informed and prepared for each step of the legal procedure.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304