Mutual Consent Divorce
Mutual Consent Divorce Procedure
- Husband and wife should be staying separately for the period of minimum one year.
- Husband and wife both are agreed for the divorce.
- They are unable to live together anymore.
- Minimum one year from the date of marriage
- When are you eligible to file Mutual Consent Divorce?This period of one year has been mandatory and thus an application for divorce by mutual consent can not be filed within a period of one year from the date the marriage was solemnized. The average timeline of the entire process, from the date of filing till getting the divorce decree can be around six months to two years. However, a suit under this section can not be filed, unless one year has elapsed since the date of the marriage. The entire mutual consent divorce procedure starting from the date of filing till the passing of the divorce decree can take around 6 months Divorce by mutual consent can be obtained within six months, but no petition in such a case can be filed within first year of marriage.
- What is Living Separately?The term ‘living separately’ connotes that the couple has not been living like husband and wife and it has nothing to do with the place of living. That the husband and wife should have been living separately for a period of one year or more immediately preceding the presentation of the petition. It states that both the husband and wife can together file for mutual divorce upon the ground that they have been living separately for a period of one year or more, and that they have not been able to live together. They need to prove in the court that they have been living independently for one year or more before presenting themselves in the court and that in that period of separation, they have not been living together as husband and wife.
- Mutual Consent divorce Sections Under Hindu Marriage Act, Special Marriage Act, 1954 and Divorce Act, 1869Mutual Consent divorce VS Contested divorce Section 13B of Hindu Marriage Act 1955 Sections under which it is filed Section 13 of Hindu Marriage Act 1955 Filed jointly by husband and wife. The Hindu Marriage Act, 1955 under section 13B and The Special Marriage Act, 1954 under section 28 provide the provision for divorce by mutual consent. Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent. Likewise, Muslims are governed by the Dissolution of Marriage Act, 1939 & The Muslim Women ( Protection of Rights on Divorce ) Act, 1986, while Christians are governed by the Indian Christian Marriage Act, 1872 and Indian Divorce Act-1869. In addition, Section- 28 of the Special Marriage Act, 1954 and Section- 10A of the Divorce Act, 1869, also cater to mutual consent divorce.
- Divorce laws in IndiaThe Indian divorce laws for ending a marriage legally classify divorce as a mutual consent divorce and contested divorce, applicable over a divorcing couple in accordance with their circumstances and consent of the spouses to opt for a divorce. However, when one spouse wants to get a divorce and the other spouse does not agree to the divorce, it is known a divorce without mutual consent. Divorce by Mutual Consent is similar to “no – fault divorce “, but being presented jointly by both Husband & wife. If any one of the spouse does not agree to the divorce then the other spouse can not ask for a mutual consent divorce. In a mutual consent divorce, both the spouses act as Petitioners because both the spouses are in agreement to dissolve their marriage.
- Granting of Mutual Consent DivorceThe divorce petition contains a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. The mutual consent divorce petition consists of a joint statement by the couple stating their incompatible differences and that they can no longer cohabit together and therefore, should be granted a divorce. The mutual consent divorce petition should also contain a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. It is mandatory for both the parties to sign the documents and if anyone refuses out of two then, an attorney has to sign on behalf of them and the court can grant a divorce on behalf of that document only.
- Steps after mutual consent Divorce is been filed
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 “.
- Jurisdiction of the family Court
- Cooling Period of 6 Months
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.
- The consent for mutual consent Divorce has to be obtained by free will and consent.
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.
- Alimony and Maintenance
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. 
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.
- Role of Mediator
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.
- #custody #child #maintenance
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. 
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. 
Mutual Consent divorce petition can be filed in the family court of the city or district ( matrimonial home ) where both the parties lived together for the last time.
The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e. their matrimonial home.
The couple can file for a mutual divorce in the Family Court of the city where the couple resided together for the last time, i.e. their matrimonial home or where the marriage was solemnized or where the wife is currently residing.
Such joint petition is usually required to be filed before the District Court within whose jurisdiction the marriage was solemnized or where both the parties last resided together.