Mutual Consent Divorce by Advocate Deepti Dogra

Mutual consent divorce is a form of legal separation in which both partners agree peacefully to dissolve a marriage they no longer believe is viable, with both agreeing that it was consensual, both in its creation and subsequent dissolution. Under the Hindu Marriage Act 1955, such agreements may be legalized if all necessary conditions have been fulfilled and both have decided regarding issues like alimony payments and child custody arrangements before proceeding with their separation agreement.

Couples may file for mutual consent divorce under section 13B of the Hindu Marriage Act, 1955, with the court eventually granting this decree if all conditions have been fulfilled and that their marriage no longer holds any future potential.

The provisions are as follows:

1. The couple are not on good terms to be able to live under the same roof.

2. Both the spouses have been living separately for more than one year.

3. They have both mutually agreed to dissolve the marriage.

4. They have already decided upon the matters like child custody maintenance allowance alimony.
    

Steps to Follow for Mutual Consent Divorce

The couple seeking a mutual consent divorce can follow the steps stated below and can get one from the court:

1. Firstly, couples can go to court; either to a family court or district court in their locality where they both lived together or the locality of their matrimonial home for filing their petition.

2. Couples seeking mutual consent divorces have various options when it comes to legal representation for mutual consent divorce proceedings, with costs typically falling within Rs. 25,000-Rs 75,000 range for mutual agreement lawyering services or they can file their petition themselves, which can often be far cheaper.

3. Couples seeking to file a petition must be living separately for at least 12 months and file a joint statement of intention.

4. In the absence of either party to present their statements directly, any family member can present these via lawyer or councilor.

5. After filing the initial motion, court adjourns for 6 months for what is known as a cooling period - this allows couples to rethink the issue and withdraw any petition that might otherwise go forward for mutual consent divorces if desired.

6. Courts provide this cooling-off period in order to prevent hasty decisions made by couples on impulse or haste. If the court feels that no reconciliation will happen then this period could be removed at their discretion.

7. Maintenance issues, child custody arrangements and alimony should all be agreed upon between both partners prior to separation or divorce. Alimony does not have a set amount that must be given; allowance can be given monthly or annually by either partner depending on what works for both. Alimony payments may come directly from either husband to wife or vice versa as needed.

8. The custody of the child/children is decided upon the basis of the interest of the child. Now a day's joint custody is a good option. Here the legal custody lies with both the parents only the physical custody is given to one of the two.

9. After the cooling period, the second motion takes place. Both the parties need to appear in front of the court and record their statements once again. Then the final hearing takes place.

10. The court after hearing the statements gives the final decree. If the court is satisfied with the statements and is assured that both the parties have consented to the divorce it approves the petition.
     

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Documents Required for Mutual Consent Divorce

A couple filing the mutual consent divorce needs to have the following documents along with the proof of their separation period.

1. The very first document is the marriage certificate, which is needed to file the divorce.

2. The couple needs address proof, both the husband and the wife need to submit the proof.

3. The next document is the proof of their marriage: a minimum of four photographs of marriage

4. The three years income tax statement.

5. All the documents and details of the property and assets owned by both.

6. The documents give the details of the profession and income statement, from both.

7. The information of both the families.

8. Evidence backing up the claims that the couple was unable to reconcile.

After the documents are ready for submission, the couple can file the petition for divorce. Then the above-stated process takes place. If one of the two spouses withdraws the mutual consent divorce then the other one needs to file a normal divorce petition on the provisions of cruelty desertion, conversion of religion, leprosy, missing spouse more than seven years, or the spouse who has renounced the world as per the section 13 of the Hindu act 1955.

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Mutual Consent Divorce FAQ

1. How long does it take to get a divorce on mutual consent?

It takes a minimum of 6 months to get a mutual consent divorce. The petitioner can file a second motion between six months and the 18th month from the date of filing of the first petition. 

2. What are the conditions for mutual divorce?

• The couple are not on good terms to be able to live under the same roof.

• Both the spouses have been living separately for more than one year.

• They have both mutually agreed to dissolve the marriage.

• They have already decided upon the matters like child custody maintenance allowance alimony.
   

3. Can mutual consent divorce be withdrawn?

The divorce by mutual consent can be withdrawn either by the wife or the husband after 18 months of the stipulated 18-month period. A decree for divorce cannot be granted as held by the Supreme Court. 
 

4. Is alimony mandatory in mutual divorce?

It is not mandatory by law that a husband has to provide alimony to the wife and vice versa. The courts do not interfere after the couple has decided alimony under mutual understanding and the couple can also walk out of the marriage without maintenance under mutual consent.
 

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5. How much does it cost to get a Mutual Consent Divorce?

Generally, the fees for filing a mutual divorce case are not much. The fees for divorce is basically charged by a lawyer which can range from INR 15,000- 30,000. The various fees charged during the process of mutual divorce are as follows:

• Consultation fees

• Jurisdiction Fees

• Appearance Fees

• Drafting Fees
   

6. What are the advantages of a Mutual Consent Divorce?

Mutual Consent Divorce is time-saving as it avoids unnecessary quarrels and also saves lots of money. There are thousands of cases pending in the courts and this type of divorce helps to come to a decision quickly.

Author

Advocate Deepti Dogra

4.8 | 50+ user ratings
Pitampura, Delhi
19 years