Mutual Consent Divorce

In case of a mutual divorce, a joint divorce petition is filed by the husband and wife, whereas in a contested divorce, a one – sided petition is filed by one spouse against the other.

The first step towards initiating the divorce procedure is to draft a joint divorce petition and file it at the relevant Family Court.

Depending on the type of divorce, the court may ask for : STEP 1 : First Motion involves joint filing of divorce petition.

As the name suggests, the divorce petition is contested by the non – consenting spouse and is, therefore, a one – sided divorce.

The First motion : The filing of divorce petition by both the husband and the wife is legally known as the “The First Motion Petition for Divorce by Mutual Consent “.

A cooling off period of 6 months is granted to the couple so that they can reconsider their decision to end their marriage and reconcile in case of a mutual divorce in India.

No, the statutory cooling off period of 6 months is not mandatory and if the court deems fit, then it can waive off this cooling period if it is sure that the marriage is broken beyond repair.

After this, a 6 month cooling off period ( not mandatory ) is given to the couple towards one final attempt for reconciliation which is solely to provide one last hope for the couple to re – think about their divorce and try and make things work out.

The intention behind this is to give a chance to allow negative passions to cool down and animosities lower between the couple seeking divorce.

Six months Waiver in Mutual Consent Divorce:- Law specifically provided six months gap or waiting period between First Motion and Second Motion.

After this, a 6 month period is given is given to the parties, after which the parties are required to file the second motion.

After this, a six months period is given to both the parties to a divorce, before they can file the second motion. Divorce by Mutual Consent is primarily divided in two stages, First Motion & second Motion, & time gap / cooling period of minimum of 6 months & Maximum of up to 18 months is mandatory.

While deciphering the consent in furtherance of mutual consent divorce it is very essential to go behind the circumstances in which consent has obtained in a mutual consent divorce.

The parties should be acting out of their own free will and consent which is free from any kind of coercion have decided to get the divorce by mutual consent.

There must be no coercion, fraud or undue influence between the spouses and there must be free consent to get the mutual consent divorce.

However, in cases of mutual consent divorce, the reasons for obtaining divorce are irrelevant, however, decision for divorce has been taken jointly by both the parties with mutual understanding and agreement.

In case the consent for mutual divorce is obtained through force or coercion, the aggrieved party can file an appeal to strike down such a decree.

In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of alimony or maintenance which will be given either by the husband to wife or wife to the husband as the case may be.

In such cases, alimony / maintenance could be paid by either the husband to the wife or by the wife to the husband subject to the mutual understanding between the couple.

In mutual consent divorce cases, the aggrieved couple is required to mutually agree without any spouse forcing the other spouse on an appropriate sum of alimony or maintenance amount which will either be given by the husband to wife or wife to husband as the case may be.

For example, under the Hindu Marriage Act, 1955, both the husband and wife are legally entitled to claim permanent alimony and maintenance. [18]

Thus, the grounds on which a Hindu woman can seek divorce and alimony may not be the same for every community.

However, if the couple marries under the Special Marriage Act, 1954, only the wife is entitled to claim permanent alimony and maintenance.

As discussed earlier, under the provisions of the Hindu Marriage Act, 1955, even a Hindu husband can claim alimony from his wife if he earns less than her or does not earn at all, though this is rare.

There is also a strident criticism from the men – folk that a property law should ideally be gender neutral especially when a Hindu woman is now a coparcener in Hindu undivided properties, rubbing shoulders with the more dominant male members of the family.

The role of mediators is that it should always make out the best possible ways to settle a dispute between the parties and to the best interests of the party.

Divorce by mutual consent was seen as the best way to settle a dispute between the parties arising out of clashes of interest arising between them.

Also, the parties must go for mediation which was first laid down in Civil Procedure – Mediation Rules22 in the year 2003.

The mechanism for mediation and alternative dispute resolution is provided in Section 89 of Civil Procedure of Code17 which states that consent of both the parties is required in approaching mediation.

In case the Court is unable to settle the disputes and differences between the parties, it will move ahead with the mutual consent divorce proceedings.

Firstly : Custody of child;*Secondly : Alimony ( lump sum maintenance to be decided between parties);*Thirdly : Returns of items ( dowry, streedhan, etc ); and*Fourthly : Litigation expenses.

In a mutual divorce, both parties must have given consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc.

In addition, decisions pertaining to child custody, maintenance as well as property rights can easily be agreed upon mutually even before the marriage is dissolved.

While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.

Besides this, the aggrieved couple can also opt for joint custody of the child where 1 of the parents has the physical custody of the child, but both of them have legal custody of the child. [0]

Also, if custody of the child remains with one of the parents then also it is not good for the child.

So, it is usually advised that custody of the child should not be given to one of the parents but shared parental responsibility should be there.

Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child.

If children are involved, physical custody of the children, duration of visitation rights and interim custody during summer and winter vacations and other holidays become points of dispute. [3]