Mutual Consent Divorce Procedure in India – Step-by-Step Legal Guide

In recent years, the couples have adopted the idea of mutual consent divorce. Mutual consent divorce has become more socially acceptable and practical for the couples to part ways without much hassle. The mutual consent divorce method to dissolve marriage is generally adopted to avoid lengthy courtroom processes and high litigation costs. 

Divorce by mutual consent is a more peaceful, streamlined, and less emotionally stressful way to dissolve a marriage. It also protects the privacy of the couple and saves them from societal conflicts unlike contested divorce. It also honors personal dignity as an individual and maintains legal integrity.

Need legal assistance for a smooth mutual divorce? Prime Legal’s divorce lawyers are here to guide you through every step.

 

What is Mutual Consent Divorce?

Section 13B of the Hindu Marriage Act, 1955, provides for divorce by mutual consent. Mutual consent divorce is basically when the husband and the wife files a divorce petition jointly. With this provision, the couple can file a petition in the court of law seeking divorce on mutual consent. Also, Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869 offer couples to divorce by mutual consent.

Both spouses file a joint divorce petition to dissolve the marriage, provided that they mutually agree to end the marriage. An open communication between the couple also makes room for child custody, alimony and any other assets that were bought in a joint name. 

Nowadays, couples generally opt for mutual consent divorce if they feel that the marriage is irretrievably broken down and there is no room for reconciliation. The couple go for mutual consent divorce and not contested divorce to save time, protect privacy, and integrity. It is also a quicker alternative for avoiding long litigation processes and is cost-efficient. 

Confused between divorce types? Read Mutual Divorce vs Contested Divorce: Legal Differences Explained.

 

Legal Requirements for Mutual Divorce

Here are the following legal requirements or the pre-requisites for mutual consent divorce:

1. Minimum One-year Separation:

Before filing a petition for mutual consent divorce, the couple must be living separately for at least one year.

 

2. Voluntary Mutual Agreement:

Both the spouses must agree for the divorce freely and voluntarily without any undue influence or coercion. They must give consent for divorce on free will and through force. They must agree on separation by their own choice. The couple must also agree on alimony, maintenance, and child custody mutually and make a joint agreement to file for divorce after settling all their concerns. 

 

3. No Coercion or Fraud in the consent:

There must not exist any coercion or fraud in the consent given by either of the spouses. The consent must be free from any external pressure.

 

Step-by-Step Procedure for Mutual Divorce

Step 1: Drafting the Joint Petition

The couple has to draft a joint legal petition for contesting for divorce under Section 13B of the Hindu Marriage Act of 1955. The draft should include all the information relating to separation, child custody, alimony and maintenance as agreed upon by the parties. The couple must reach a Memorandum of Understanding for the agreed upon terms. Both the spouses must also sign the petition under legal guidance. 

 

Step 2: First Motion & Appearance Before the Court

After filing the petition in the family court having the jurisdiction to try the matter, the first motion is set on to existence. The parties have to appear before the court. They can also be told to verify the statements made by them in the petition under oath. The court can also refer the couple for a mediation or counseling procedure before passing the order of divorce. 

 

Step 3: Cooling-Off Period

The couple must be provided with a cooling-off period of at least 6 months after the first hearing. The cooling-off period must not extend beyond 18 months. This time is generally given to the couple for reconciliation or withdrawal of the petition. But, in some cases when the court observes the cooling period is not required due to irretrievable breakdown of marriage, the cooling period is not given to the couple. 

 

Step 4: Second Motion and Final Hearing

After the cooling-off period is over, the second hearing takes place. In this, both the parties meet, and reaffirms their consent, and confirms the settlement. If the court is satisfied, it passes the decree of divorce. 

 

Step 5: Grant of Divorce Decree by the Family Court

After the court passes the decree of divorce, the family court grants the divorce decree. Further, the parties have to obtain the certified copies of the decree and judgment from the court, and carry further administrative procedures. 

Want a complete overview of the legal process? See Divorce Procedure in India: A Complete Guide.

 

Documents Required for Mutual Divorce

The following documents are required for mutual divorce:

1. Marriage certificate: Authorised marriage certificate is necessary.
2. Address proof: The address details of both the spouses.
3. Photographs of both spouses.
4. Income proofs: Income certificate or bank details relating to the income or earnings of both the spouses.
5. Proof of separation: Any proof of the spouses living separately from over a period of time.
6. Joint agreement on alimony and custody: The Memorandum of Understanding as agreed upon by both the parties on alimony, maintenance and custody of the child (if any).

 

How Long Does a Mutual Divorce Take in India?

The time required for mutual consent divorce differs from case to case. Here are the following timelines that can happen:

1. Average time: The average for mutual consent divorce is around 6-18 months. This period also includes the cooling-off period given by the court to the parties for reconciliation. 
2. A 6 months cooling-off period is given to the parties so that they reconsider their decision of divorce. 
3. The cooling-off period can be waived off if the court thinks that the period is of no use and there is irretrievable breakdown of marriage. Giving a cooling-off period will only drag the proceedings and would not render any reconciliation between the parties. 

For a deep dive, check out How Long Does Mutual Divorce Take in India?

 

Custody and Alimony in Mutual Divorce

The couple generally enter into a Memorandum of Understanding where they agree upon the terms of custody of child/ children and alimony or maintenance. 

The couple make arrangements for child custody, visitation rights, or joint custody. These arrangements must be made on mutual consent by both the parties. The welfare of the child is of paramount importance while deciding the custody of the child. If the parties are unable to agree on the same terms, then the court interferes in the matter, and passes an order which is beneficial for the child and is better for the well-being of the child. 

For maintenance and alimony, the parties try to reach a middle ground. The court also reviews the arrangements of the couple on the grounds of reasonableness while considering the earnings and liabilities of both the parties. 

Do you have any child related queries? See How is Child Custody Decided after Divorce in India?

 

Advantages of Mutual Consent Divorce

The following are the advantages of Mutual Consent Divorce in India:

1. Faster and Less Expensive:

It often takes only 6-18 months to conclude the procedure of mutual consent divorce, and sometimes around 6 months only when the cooling-off period is waived off. Further, the simplified documentation costs, and only one lawyer involved in the filing of a joint petition cuts the extra expenditure. 

 

2. Reduced Emotional Conflict:

Since both the parties have agreed upon the terms of divorce and the divorce is carried out by the free consent of both the parties, the emotional conflict is reduced. It is more healthier for the families and the couple to part ways through a mutual consent divorce setup as it keeps the people involved away from the emotional strain. 

 

3. Less Damaging for Children:

The couple who have children can decide and mutually agree upon the custody of children. The well-being of children will be given paramount importance while deciding the custody and visitation rights of the children. A mutual understanding on the subject would foster a more cooperative relationship with children. It would also help the children to adjust in the post-divorce environment without going through any emotional turmoil of choosing only one parent. 

 

4. Greater Privacy and Dignity:

The proceedings in mutual consent divorce do not render much information related to the couple to come out in public. It preserves the privacy, dignity and integrity of the couple. 

 

Common Mistakes to Avoid

Here are a few common mistakes that one can avoid during mutual consent divorce:

1. Not having terms documented properly: Ask your lawyer to prepare proper documents related to Memorandum of Understanding clearly stating the terms of divorce. These MoUs must also be signed by the parties for future purposes. 
2. Not hiring a competent lawyer: Even though you are filing for mutual consent divorce, do not hire any lawyer. Hiring of a competent lawyer can make your work more streamlined and fair. Also consult a lawyer before signing any MoUs. 
3. Agreeing to unfair alimony or custody terms under pressure: One should not agree to unfair or random terms relating to custody or alimony. Check properly with your lawyer before agreeing on the terms. If you have any doubts or queries, seek legal assistance. 

 

Conclusion

Mutual consent divorce offers a mechanism where the parties who are mutually ready to dissolve the marriage can do so without much emotional and litigation turmoil. If the spouses have agreed to mutually part ways and dissolve the marriage, they can do so by filing a joint petition seeking for mutual consent divorce. 

But before that they have to live separately for at least 6 months. These 6 months acts as a cooling-off period where the parties can reconcile if they seem fit, but after the completion of the cooling-off period if the parties do not reconcile the court has to pass the decree of divorce. 

The parties can also enter into MoUs to have a more clearer idea of the terms and conditions of the divorce especially understanding reached upon by the parties relating to custody and alimony. 

Thinking of filing for mutual divorce? Consult Prime Legal’s experienced divorce lawyers in Bangalore for strategic legal advice.