How to apply for divorce by mutual consent
Contrary to what most television serials and movies show, there is no deed executed on stamp paper and upon execution of which, the couple gets an immediate divorce. A petition is required to be filed in the court of competent jurisdiction, which is usually where the marriage had taken place and was registered or where the couple last resided together.
Under the Hindu Marriage Act, the couple can jointly file for divorce after having completed at least one year since their marriage. The law previously mandated a separation of a minimum of one year before the petition for divorce by mutual consent could be moved, after which the court directed a cooling off period for a minimum period of another six months. However, thanks to a recent judgement by the Supreme Court in September 2017 (Civil Appeal No. 11158 of 2017 titled as “Amardeep Singh Vs. Harveen Kaur”), if the couple has been separated for 18 months or more, this cooling off period maybe waived after seven days of the first motion. So there are two options now for getting a divorce by mutual consent –
- Live separately for a year, file and then wait out the cooling off period of 6 months before moving the second motion; or
- Live separately for 18 months or more, then file the first motion, move an application for waiver after 7 days and tada! You’re divorced and may live happily separately ever after.
Being the smart people we are, we went for Option II and we’re legally single again.
Here are a few tips I’m sharing from my own experience in getting a divorce by mutual consent (for couples who registered their marriage under the Hindu Marriage Act).
Don’t sweat the small stuff
- The ex and I were very clear that we didn’t intend to wash any dirty linen in public. We didn’t want the good memories to be tarnished by fighting over who got to keep what. We’d divvied up all the stuff we’d collected over the years before I moved out and settled all the finances as well.
- Don’t quibble over the small stuff. He was insistent that he wanted to keep the washing machine and the fridge. I bought myself a new fridge and hired a maid to wash my clothes till I get a washing machine. A new fridge costs Rs. 30,000. It’s not worth the argument and your peace of mind in what is already a difficult time for both.
- I kept all the jewellery I’d received from both sides during the wedding and through the marriage. Legally, that belongs to the woman. It is her ‘streedhan’ and the husband’s family cannot ask for it to be returned. I’d suggest that if anything is returned voluntarily, it be documented clearly for future reference with photographs.
Clean up the documentation and nominations
- Make a list of all the property held jointly, including real estate, bank accounts and lockers, investments, etc. and decide on who gets to keep what. I removed my partner’s name from the investments I’d made where I was the first holder, and he was the nominee or second holder. I had also held a locker jointly with ex MIL where all my jewellery was kept, and had her name removed from it.
- If there is anything you specifically want to keep because it holds some memories or is of sentimental significance to you, state that clearly, or you’re going to be regretting that you didn’t bring it up later. My ex had stored all our photographs over the years in a hard drive, and I forgot to take copies of it. He’s been promising to make me the copies, but I am yet to get them.
Related reading: How I prepared myself and my kids for a divorce
Get proper legal support
- I’m a lawyer myself, but decided to ask a friend of mine who handles matrimonial matters to file the petition for us. If you’re filing through mutual consent, usually you can file through the same lawyer and split the costs.
- Make sure that there are at least two different lawyers mentioned in the vakalatnama (i.e. the authorisation given to a lawyer by a client to represent them in court) since two different lawyers will be needed to identify both the parties in court.You’ll also need to sign two different vakalatnamas for the court records, though you may be authorising the same lawyers in both. These are small technical things, but you don’t want to be waiting in court twiddling your thumbs while your petition is held up on technical grounds.
Related reading: How to find a good divorce lawyer in India?
The statements and signatures that are required
- The petition should clearly mention the terms of settlement – the finances, personal items, household items, furniture. Don’t leave any scope for any ambiguity to arise.
- There are usually two hearings – the first motion and the second motion. Depending on local practice, the petition maybe filed and taken up later in the same day (which is what happened in our case) or may need to be filed prior and then be listed a few days later.
- In the first motion, after the judge confirmed that we had read the petition and had no claims against each other, we each had to sign a statement stating our name, wedding date, date since we had been living separately and that we couldn’t live together because of incompatibility and were thus filing for a divorce by mutual consent of our own free will. The statements were signed by us, and the signatures then identified by the respective lawyers. The same lawyer cannot identify the signatures of both the parties.
- We filed an application for a waiver of the cooling off period a couple of weeks later and after confirmation by the judge of our intentions, we were required to sign statements reiterating our decision of a divorce, which were again affirmed by both lawyers. After reading through the statements, the judge dictated a decree of divorce by mutual consent.
Make several copies of the decree; keep the family away
- I’d suggest that you instruct your lawyer to apply for several sets of the decree from the court since you’re going to have to present it in several places if you need to apply for a change of name after your divorce. In most cases, a true copy of the decree certified by a notary should suffice, but some departments/offices such as the passport office insist on keeping a copy of the original decree.
- The ex and I had to meet a few times to decide on things, finalise the petition, etc. We met at a neutral location, like a coffee shop which was midway for us. Neither of us invited the other one home.
- For our hearings as well, we went alone. Bringing any of our family along would only complicate issues and result in a power struggle by our respective family members, which was additional stress that was not needed. My mom offered to come along and wait outside, but I asked her to stay home.
- If you were planning to drive yourself, do yourself a favour and take a cab to court so that you’re not hassled over things like parking or hunting for change to pay the parking charges. Also, this is good for a quick escape as soon as you’re done with your hearing.
Related reading: Whose advice should I take for my divorce?
Don’t make a scene in court
- Keep a handkerchief ready to mop up the tears. Though I knew that this would happen, after signing the statement in the second motion, I did end up shedding a few discreet tears at the finality of it.
- Please save the histrionics for when you’re outside the court. Loud crying in the court may result in the judge questioning if you really want the divorce, which could unnecessarily delay and complicate things.