The easiest and the simplest way to end your marriage is through mutual divorce. In a mutual divorce parties agree mutually to separate and dissolve the marriage. To file for divorce through mutual divorce there are two things on which the parties are required to reach consensus, i.e., alimony and child custody. Owing to this mutual divorce saves a significant time and money as opposed to a contested divorce. It is also easier to file for mutual divorce.
The parties are required to file joint statement by both the parties. This statement has the agreement to split the assets, custody of children, etc.
After 6 months of the first motion or by the end of the reconciliation period, if both parties still don't agree to come together, then the parties may appear for the second motion for the final hearing. In a recent judgement, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court.
In the final step divorce decree is granted by the court after hearing both the parties.
The parties must agree on who will have custody of child. Parties can either opt for joint custody or sole custody. In case of joint custody both the parents have the legal custody of the child but only one of them have the physical custody whereas in case of the sole custody only one of the parent has both the sole and physical custody of the child.
The second most critical part of mutual divorce is to agree on the alimony amount. Alimony is the payment given to one spouse by the other as maintenance. The parties need to agree on this before filing the divorce petition.
Whatever is received as streedhan should be returned as per what is mutually decided by the parties.
The couple should also decide on how would they like to divide their litigation expenses.
As per Section 19 of the Hindu Marriage Act, 1955 you file the divorce petition before a civil court of a district-
1. Where the couple seeking divorce last resided together
2. Where the marriage took place
3. Where the wife is residing at present
4. Where the respondent(opposite party) is residing at the time of presentation of the petition.
The district court here implies the family courts that are established under the Family Courts Act, 1984.
Advise and consultation from lawyer on a 30-minute phone call
Consultation and counselling at advocates's office.
Mutual Consent Divorce petition drafting.
1st Motion filing of Mutual Consent Divorce petition.
2nd Motion filing of Mutual Consent Divorce petition.
Obtaining Divorce Decree from the court.
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During the six month period or time gap between first motion and the second motion either of the parties can withdraw by filing an application before the court, stating that they do not intend to get divorce through mutual consent. In such a circumstance the other party only have one option to file for contested divorce. Contested divorce can be filed on any of the following grounds like cruelty, desertion, voluntary sexual inter-course with another person, unsound mind, conversion of religion by other spouse, leprosy, venereal disease, a spouse having renounced the world or being missing for a period of more than 7 months.
To remarry, getting divorce is a pre-condition. If you remarry without getting divorce then it is a punishable offence with 7 years imprisonment.
In most cases, parties are required to be present before the court during first and second motion. Only in rare cases, camera proceedings may be allowed where the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally on the discretion of the court to allow it.
No, the statutory cooling off period for six months is not mandatory. If the court deems fit, then it can waive off this cooling period. This implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another six months.
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 husband as the case may be.
While obtaining divorce through mutual consent the parties are required to settle the issue of child custody. The spouse can opt for joint custody. Under this arrangement, one of the parent has the physical custody of the children and both of them have legal custody of the child.
The entire process from the date of filing till getting the divorce can take around six months to one year.
At the same time, there have been a lot of cases that come up when not all couples agree on the desirability, the grounds or the conditions for the divorce which in turn creates a trouble for the partner that is willing to start and file the petition.
If you have done court marriage then mutual divorce will be governed by Section- 28 of The Special Marriage Act, 1954. In such a situation a petition for divorce may be presented before the district court by both the parties together on the ground that they are not staying together for over a period of one year now. They mutually agree that the marriage should be dissolved as they are unable to live together. After six months of submitting the petition but not later than 18 months, the court after hearing both the parties and making enquiry as it deems fit can a pass a divorce decree stating that the marriage is dissolved from the date of the decree.
Divorce of a christian couple is governed by the Divorce Act, 1869. Here the parties can mutually present the petition before the district court. In their petition they have to state that they have been staying away for a period of two years or more. They need to show that are unable to live together and want to mutually end the marriage. After the expiry of six months and before 18 months, if the court is satisfied after hearing both the parties, then it may pass the divorce decree.
As per the Hindu Marriage Act, Section- 23(1)(bb) the court is required to be satisfied that the consent for divorce under Section- 13-B is not obtained by force, fraud or undue influence. It is the duty of the court to figure out if the consent is obtained freely or under coercion. The option of appeal is available against the decree as there may be situations where the court may have failed to see that the consent was not given freely.
In India marriage and divorce are governed by personal laws. Hindus including Sikhs, Jain and Buddhists are governed by Hindu Marriage Act, 1955. Christians are governed by Indian Divorce Act, 1869. Muslims are governed as per Dissolution of Marriage Act, 1939. Parsis are governed by the Parsi Marriage and Divorce Act,1936.
In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of Section- 13 of the Civil Procedure Code, 1908. In fact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for camera proceedings.
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