Is Divorce by Mutual Consent a More Dignified Way of Parting Ways?

by Team Bonobology
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Divorce is one of the new realities of modern life. It usually conjures up images of two angry spouses, neglected kids, despondent parents and a long, arduous, grief filled road. Not to forget the number of times one has to visit the lawyer and pay huge bills. However, many couples today don’t want a messy divorce. They wish to handle the separation with mutual respect, sensitivity and emerge from their divorce without emotionally scarring the other. That’s where the divorce by mutual consent comes in.

Divorce By Mutual Consent In India

While this option is slowly gaining traction, but among common questions asked include how can I get a divorce without an attorney? Or is it wise to divorce without a lawyer?

For this, both husband and wife can opt for “divorce by mutual consent” where divorce without lawyers or divorce without attorney is possible and divorce mediation can be short and painless.

This can be done under Section 13B of the Hindu Marriage Act 1955 and Section 28 of the Special Marriage Act, 1954, where both the parties can seek divorce by mutual consent by filing a petition before the court. Mutual consent means that both parties agree for a peaceful separation.

divorce with mutual consent is a modern society thinking now

Mutual Separation Image source

Step by step procedure for divorce by mutual consent

‘Divorce by mutual consent’ happens when both parties have agreed to opt for an amicable divorce. Senior lawyer Usha Andewar says, “Basically, in a family court, the lawyers are not required at all. There are some intricacies where people can make use of a lawyer. If the couple wishes to file the petition by themselves, and know the legal intricacies involved, then they can do it. If they can know the procedure and how to do it, they can file the affidavit themselves. It’s not like other courts, only if the court grants permission can a lawyer appear for the party.”

If your spouse and you want to spare each the trauma of a long winded divorce then a ‘divorce by mutual consent’ is a good option.While it is now possible to dissolve a marriage by mutual agreement between the parties, provided it is neither unlawful nor the result of collusion.  For obtaining a decree of mutual divorce under Section 13B of the Hindu Marriage Act 1955, the main ingredients include that the couple has been living separately for a period of more than one year and that they had not been able to live together and that they had mutually agreed that the marriage should be dissolved.

Divorce by mutual consent with proper process is legal

Divorce by mutual consent Image source

Two other key aspects to consider while opting for a Divorce with Mutual Consent is that  the husband and wife have to reach consensus is on alimony and maintenance issues and child custody.

Alimony– As per law there is no minimum or maximum limit of maintenance and it could be any figure or no figure.

Child Custody– The child custody can be shared or joint or exclusive depending upon the understanding worked out by the couple.

Who can file for divorce by mutual consent?

The Section 2 of the Hindu Marriage Act, 1955 applies to any Hindu by religion or one or any of its forms including a Virashaiva, Lingayat, follower of Brahmo, Prarthana or Arya Samaj, Buddhist, Jain or Sikh by religion. This Act also applies to Hindus outside India’s territory only if they are domiciled in the territory of India. Anyone who got their marriage registered under the Special Marriage Act can file for a divorce by mutual consent under Section 28.

When can you file for divorce by mutual consent?

A couple who want to dissolve or end their marriage are required to wait at least for one year from the date of the marriage if they wish to opt for a divorce by mutual consent. The marriage should have been solemnised before two years.

They also have to prove to the court that they have been living separately for a period of one year or more before filing the petition for divorce. They have to prove that during this separation they have not been able to live together as a husband and wife. The divorce petition can be filed in the family court of the district where the spouses have been living in.

The district court where the couple seeks a divorce with mutual consent can be located either in the place or city or town where the couple seeking divorce last lived or where their marriage was solemnised or where the wife is residing at present.

What are some of the laws under which one can file for divorce with mutual consent in India?

There are different laws mandating divorce among people practising different religions in India. This includes the Hindu Marriage Act 1955, The Muslim Women (protection of Rights on Divorce Act), 1986, Personnel laws of Divorce and also the Dissolution of Marriage Act 1939, The Indian Christian Marriage Act 1872 and the Indian Divorce Act 1936 and The Parsi Marriage & Divorce Act 1936, Special Marriage Act 1954 among others.

divorce by mutual consent is eligible but with few conditions

Divorce Papers Image source

Documents required for filing divorce with mutual consent

While both parties need to submit their proof of residence which should be accepted by court mandated by 13 B of the Hindu Marriage Act, 1955. In addition to this they need to submit:

  1. Proof of Marriage- Marriage Certificate
  2. Identity Proof of both parties (Passport, Voter’s card, Ration card, official government ID)
  3. Passport size photo
  4. Copy of any mutually agreed agreement between parties for custody of child or issue of permanent alimony/maintenance
  5. Income Tax returns of 3 years
  6. Details of present income
  7. Birth and family details
  8. Details of the assets of the spouses

The process

Under the Hindu Marriage Act 1955, first the mutual consent divorce petition which is an affidavit is filed in the respective district family court. The statement of both the parties involved which is the husband and wife is recorded by the Court and the matter is then adjourned for another six months. From 6 months and anywhere before 18 months, the couple will have to be present in court again to make a second motion of mutual consent filed earlier. The Decree of divorce is granted by the Court after the second motion.

What if a couple compromises within this period? 

If the couple reaches a compromise and do not wish to go forward with the divorce then they can withdraw the case.

If the couple doesn’t attend the court at the scheduled date of the second motion, then the petition stands cancelled.

Also in case one of the spouses wishes to withdraw from the divorce, they can do so by filing an application in the court stating that he/she does not wish to pursue the divorce by mutual consent.

The court in such cases grants no divorce decree. If the other spouse wishes to continue with the divorce he or she can file a normal petition under the provisions of Section 13 of the Hindu Marriage Act, 1950.

What is the cooling off period?

The cooling off period can range anywhere from 6 months to 18 months after the first affidavit is filed in the court. During this time, the couple can work at reconciliation and the court sometimes orders them to seek counselling.

During this period, if any, of the respective spouses declare that the other was uncooperative, then this could be grounds for the court to disallow the divorce with mutual consent.

However in a landmark ruling in 2017, one can now get a waiver on this cooling period. The waiver on cooling period implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another 6 months. Prior to this judgement, only the Supreme Court had the authority to waive this period off.

What is Second Motion?

The Court gives a period of 6 months and not more than 18 months cooling off period to the couple and gives a date for listening to the parties. The couple can then file for a second motion and the judge will dissolve the marriage. In case the case is withdrawn or the couple doesn’t attend the court at the scheduled date then the petition stands cancelled.

Expert Speak

Renowned Gujarat based lawyer Prakash Thakker says, “The courts normally will wait for 6 months to give the concerned parties a cooling off period once they file the first affidavit for divorce by mutual consent. One requirement is that the marriage should have been solemnized before two years. The court normally gives 6 months cooling time so that the couple may not have taken an emotional decision. Usually courts are busy but some courts even call the parties to the chamber and ask them to sort out differences and persuade them not to go ahead with the decision.”

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