Mutual Consent Divorce Process in India



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Mutual Consent Divorce


If both the partners in a marriage are certain that they do not wish to stay together owing to irreconcilable differences, then divorce is recommended for them to move on in their individual lives. If the spouses decide to stay separate without getting legally divorced, the assets of a spouse can be claimed by the other spouse or, in some cases, even by the legal heirs of such other spouse.

If a couple cannot get along well together, the best course of action for them may be to separate cordially. If not, they have to spend a life full of compromises or go through the painful process of fighting for a divorce by putting allegations on each other. Divorce by mutual consent permits the husband and the wife to agree to divorce on terms acceptable to both of them. This is the most convenient method of ending a marriage, and also the swiftest.

Divorce by mutual consent is available to all couples, irrespective of their religion or place of marriage. For a Hindu couple, Section 13B of the Hindu Marriage Act, 1955 permits for mutual consent divorce.

Muslims who face an irretrievable breakdown of marriage can seek divorce by mutual consent under personal law (called “Mubarat”). In addition, the Dissolution of Muslim Marriages Act, 1939 also permits for dissolution of marriage by mutual consent. Parsis can seek mutual consent divorce under the Parsi Marriage and Divorce Act, 1936. A Christian couple can file for divorce under Section 10A of the Divorce Act, 1869. For others (including cases of court marriage), Section 28 of the Special Marriage Act, 1954 allows divorce by mutual consent.

Who Can File For Mutual Consent Divorce?

Generally, a couple should have tried to make the marriage work before considering a divorce. This is why the law requires that the spouses should have been living separately for some time before they can apply for mutual consent divorce. This period should be at least one year. This means that the marriage should be more than a year old.

A newly-wedded couple cannot apply for a mutual consent divorce on the reason that they are unable to live together. However, such a couple can ask for a divorce if any of the grounds for divorce are fulfilled. A couple which has been staying separate for at least a year can file for a mutual consent divorce, if they confirm in their divorce application that they are unable to live together, and agree that their marriage has completely collapsed.

The most important requirement for a grant of mutual consent divorce is free consent of both the parties. If any one of the spouse does not agree to the divorce then the other spouse cannot ask for a mutual consent divorce. But a spouse can seek a divorce under any of the general grounds for divorce (such as cruelty, etc.) without consent of the other. Such grounds have to be proven in court by the spouse asking for divorce.

Where To File For Mutual Consent Divorce?

An application for mutual consent divorce is called a petition. A petition for mutual consent divorce can be filed at a family court which is located at any of these places.

    • At the place where marriage had taken place.
    • At the place where husband and wife last co-habited (resided) together.
    • At the place where the wife resides at the time of filing of the petition.

Mutual Consent Divorce Petition

The mutual consent divorce petition should contain a joint statement by both the parties that due to irreconcilable differences, they can no longer stay together and that they wish to be granted a divorce. The application for mutual consent divorce should contain the terms on which the parties have agreed for the divorce.

    The terms of consent should ideally cover the following topics, in plain and simple language.

    • Maintenance (also called Alimony) - This is the financial support paid by one party to another after the divorce. This can be a one-time payment, or a periodic payment for certain duration of time. For example, a husband can commit to support the wife with a monthly payment till such time that the wife is financially independent or till the time she remarries.
    • Separation of assets - The consent terms should provide for division of assets owned jointly by the parties. Generally, high-value assets such as house property may have been purchased by both the husband and the wife in their joint names. The parties can agree to distribute these assets on payment of certain sums of money from one party to the other. Even smaller assets such as share in business, joint bank accounts, etc. must be carefully identified and separated.
    • Custody of children - In case of minor children, the parties can decide the parent with whom the children would stay after the divorce. The other parent can have visitation rights to meet the children as per a pre-decided schedule. The parents can also agree upon the financial provision for child’s care and education.
    • Returns of property - In case a party had brought in certain items during or after the marriage, such items could be identified and returned to such a party. Generally, items such as streedhan (voluntary gifts given to a woman before or after her marriage) and dowry (property or money brought by a wife to her husband on their marriage) are to be returned to the wife.
    • Withdrawal of litigation - In case one party has filed any police complaints or court cases against the other, relating to the marriage, the same are clarified to be withdrawn. The mutual consent divorce is an end to the relationship on mutual terms, and therefore, no legal issue should be pending between the couple after the divorce is finalised.
    • Divorce expenses - Generally, both parties share the expenses of the divorce jointly. However, this is not a general rule, and the parties are free to agree, who among themselves will bear the legal cost for divorce. This too should be mentioned in the mutual consent divorce terms of settlement as it avoids any confusion when the legal fees are due after the divorce is granted.

As can be seen, divorce by mutual consent gives the partners in a marriage a choice to decide about issues which are important to them. The court does not enforce any terms or conditions as the parties have themselves agreed to the terms of their separation.

What Are The Conditions For Granting Mutual Consent Divorce?

The marriage dissolves from the date mentioned in the court’s order. There are certain conditions based on which the court will pass an order of divorce.

    These conditions are as under:

    • The divorce application should not be withdrawn by any party at any time before the court passes the order
    • The second motion should be made after 6 months and before 18 months from the date of filing of the divorce application. If the second motion is not made within the 18 month period, the court cannot grant the divorce
    • At the second motion, both the parties reconfirm that the marriage between them has broken down and that they have agreed to divorce  

What Is The Cost Of Mutual Consent Divorce?

"...when it comes to a life-changing event which divorce is, it is advisable for the couple to look beyond the the legal fees. The focus should be on getting the legal process of divorce done the right way.. "
- Adv Manish Acharya, Bombay High Court

The cost of a mutual consent divorce varies depending on the facts and circumstances of each case. In cases where the terms of settlement need to be prepared in great detail, a greater involvement of the advocate is required. This is also the case where the advocate will have to counsel the couple on the legal aspects of the terms of settlement. However, it is important that the terms of settlement are accurately written, as these terms generally cannot be revised after the divorce is granted.

Why Mutual Consent Divorce?

There are several benefits of a mutual consent divorce. For a couple, whose marriage has broken down without any chances of reconciliation, mutual consent divorce is a simple and fast way to end their relationship.

    Here are some more:

    • As the involvement of the advocate is lesser than in a contested divorce, mutual consent divorce costs relatively less;
    • There is no need to make an allegation or provide a reason for seeking a mutual consent divorce, and so there are less quarrels and social embarrassment;
    • As the process is straightforward, the time taken for mutual consent divorce is under a year, compared to 3-5 years for a contested divorce.
    • The couple can focus on moving on in their personal lives, rather than on litigation;
    • Issues such as custody and guardianship of children, visitation rights, etc. can be decided mutually instead by the court.

Mutual consent divorce is the easiest means of ending a marriage. Not only is it faster, the process is private and saves the couple from social embarrassment that is caused by allegations and counter-allegations against each other. MyLegalWork provides a pre-divorce legal consulting service which helps couples understand the issues involved in a mutual consent divorce and helps them in building the terms of a mutual consent divorce.

Click here to see the details of this service.

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