Divorce is a significant decision that marks the end of a marriage. When both partners agree to separate amicably, a mutual consent divorce is considered the most civilized and less stressful way to terminate a marriage without any complications. In India, the laws for mutual consent divorce are designed in such a way that the process of separation is as less problematic for both parties as possible. 

Mutual Consent Divorce is a legal process of separation, when both the husband and wife want to separate with their own will after marriage. While giving their consent for the mutual divorce, both husband and wife should agree to all terms and conditions of divorce regarding maintenance and alimony or custody of children if any.

Conditions for filing a Mutual Consent Divorce:

Before filing for a Mutual Consent Divorce a set of specific conditions are need to be met. These conditions ensure that both parties are in agreement and the process is carried out legally. 

To file for mutual divorce in India, couples must satisfy the following conditions:

1. Both spouses must agree to the divorce

2. The couple must have lived separately for at least one year before filing the divorce petition. This condition shows that the marriage has broken down and reconciliation is not possible.

3. Both parties must acknowledge that there are irreconcilable differences between them, making it impossible for them to live together as a married couple and that the marriage has failed beyond repair.

4. Both parties must have to settle all their disputes, including issues related to alimony, child custody, and property division.

 

Legal Provision in India:

As there are different acts for marriage registration, similarly for divorce, the law has different provisions as per the marriage acts which are:

• Section 13B of the Hindu Marriage Act 1955(Period of separation of 1 year minimum)

• Section 28 of the Special Marriage Act, 1954

• Section 10A of the Divorce Act, 1869 (Period of separation of 2 year minimum)

• Section 32B for Parsi Marriage Act 1936

• And under the sections of Christian and Muslim Marriage Act.

 

Legal Requirements to Consider for a Mutual Consent Divorce

While considering for a mutual divorce it is important to be aware of the legal procedurals that have to be followed. The requirements are:

1. For a divorce, the consent of both partners is mandatory. Hence, if only one is no longer willing to continue the marriage, the divorce will not be legal.

2. Your spouse has to notify you in writing about his or her intent to end the marriage. This can be done through mail, fax, e-mail, or by any other mode of communication deemed fit or convenient. In any case, if your spouse does not provide you with this notice the divorce is not acceptable.

3. Both spouses must have legal representation, either an attorney or a mediator during the divorce proceedings. 

4. At the time of hearing, for a mutual divorce to be granted by the court both the spouses must also come with proofs to support the case they are presenting. The court will then take a decision on whether or not to dissolve the marriage based on such evidence.

 

Procedure to file Mutual Consent Divorce in India:

Step-1: A Memorandum of Understanding (MoU) should be drafted. An MoU is a legal document that outlines the terms of the divorce, such as the division of property, alimony, and child custody.

Step-2: The joint petition has to be written and signed by both parties and has to contain the MoU and must be filed in the family court.

Step-3: Following the drafting of the petition and its submission, it is mandatory for both the petitioner and the respondent to appear before the court with their lawyers. It is for the court to scrutinize this petition together with documents that have been filed. After the process of scrutiny is completed and the court has concluded that there is no hope for the reunion of the two parties involved, it will proceed with divorce.

Step-4: At the first motion hearing, the court will ensure that the parties have agreed on the divorce voluntarily and that they fully understand the contents of the MoU. 

Step-5: After this, a cooling-off period of six to eighteen months is given to both the parties before they can file the second motion. During this time, the parties are free to withdraw their consent to the divorce. However, there are some cases where the court may grant a divorce without a cooling-off period. These cases typically involve exceptional circumstances, such as if one of the parties is suffering from a serious illness or if there is a threat to the life of one of the parties.

Step-6: After the cooling-off period, the two parties go back to court for the second motion hearing. At this hearing, decision of the Court upon the absolute agreement of both parties to end the marriage and the complete satisfaction of the court, the divorce is granted, putting a legal end to the marriage between the parties.

Documents required for Mutual Divorce in India:

The following are the documents required for mutual divorce in India:

• A copy of the marriage certificate

• A copy of the address proof of both parties

• A copy of the income proof of both parties

• A copy of the copyright of any children of the marriage

• The Memorandum of Understanding (MoU)

• The joint petition for divorce

 

However, it is possible for one of the partners to wake up one morning and realize that they want to continue being married. In such situations, one of the spouses may go to court and state that they have changed their mind and do not want a divorce any longer as they are willing to work things out. The court where the party is applying for the decree must be the same court as the one that has the divorce petition standing. The law also allows a court to dismiss a divorce petition if both the individuals who made that particular petition agree to step it down.

 

“PRIME LEGAL is a full-service law firm in Bangalore that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. We provide exceptional legal services in family law, divorce law, criminal law, consumer law, civil law, and more. 

Don’t face your legal challenges alone! Reach out to Prime Legal for a consultation with the best divorce lawyers in Bangalore. Our dedicated team is here to support you and guide you toward a favorable outcome.”

WRITTEN BY- TEJASRI RAO