Divorce is the formal legal process for dissolving a marriage through competent court. When a couple mutually decide that they can no longer continue living together and wish to part ways cordially, they often choose the path of mutual consent divorce. This process is widely regarded as the most simple, dignified, and peaceful method for legally ending a marriage.
What Is Mutual Consent Divorce?
As the term itself suggest a mutual divorce is one in which the couple willingly consent to the end of their marriage. If the couple is Hindu by religion, then the divorce process is governed by the Section 13B of Hindu Marriage Act 1955. Similar provision under the other personal laws for other religions. In the process the couple approach the appropriate Family Court as per jurisdictional rules, and files a joint divorce petition stating their mutual consent for divorce along with the terms of settlement. If the court satisfied that consent is genuine and the settlement arrangements are fair, it proceed with granting the decree of divorce. Since it is based on mutual agreement, the process is minimal in conflict, time-efficient and straightforward.
Eligibility for Filing Mutual Divorce
For filing the divorce, the couple must fulfil certain legal obligations:
- Both the spouse wants to end their marriage
- Living separately for at least 1 year
- No pending disputes between the spouses in terms of finances, child custody, legal proceedings etc.
- Free consent for divorce and settlement arrangements
Prerequisite Documents for Divorce
Following documents are required prior filing the mutual divorce:
- Identity proof of the spouses (Aaddhar Card)
- Current passport size photo with time and date
- Marriage invitation card
- Marriage photographs
- Marriage certificate (if available)
- Two witnesses (preferable family members)
Steps for Mutual Divorce
Step I: drafting the divorce petition
The divorce process begins with drafting a joint divorce petition through a practicing advocate. The advocate drafts the petition by incorporating the details of both the spouses name, age, date place of marriage, current address and reason for divorce along with the required affidavits. The petition contains the settlement agreement which is also drafted by the advocate as per the terms decided by the couple.
Note*
The settlement agreement is the crucial document for mutual divorce. It contains all the terms and conditions agreed upon by both the spouses regarding their post-divorce rights and responsibilities. This agreement includes provisions related to alimony settlement, child custody and visitation arrangements, withdrawal of any pending legal cases, as well as other financial and property-related terms. It also states that neither party will raise any future claims against the other after the divorce decree is granted. The agreement covers every aspect of the settlement, and ensures clarity, transparency, and smooth execution of the mutual divorce process.
Step II: Filling the joint petition
Once the petition along with settlement agreement is drafted, peruse and sign the complete set of documents. The advocate will file the petition in appropriate Family Court. The jurisdiction of the Family Court depends on the last place of residing as husband and wife, or the place of marriage, or the wife currently resides. Upon filing the petition, a date for first hearing is schedule by the Court.
Step III: First Motion
During the first motion hearing both the spouse need to present along with the respective advocates. The advocate presents the joint petition and brief the facts and terms of settlement before the Learned Court. For courts satisfaction the learned Judge interacts with both the spouses to verify the details of marriage and most importantly their free consent for divorce. The court record the statements of both parties and witnesses. If the learned Judge is satisfied that all the legal requirement are met and the consent is genuine, then the first motion is accordingly allowed.
Step III: Cooling Period
After the first Motion the court provide a cooling-off period of six months initially. It is provided with a intent to give both parties time and space to reconsider their decision and explore the possibility of reconciliation. The purpose of the cooling period is deep-rooted in the belief that, in our country, marriage is regarded as a sacred bond that should be preserved if possible, and spouses should be encouraged to resolve their differences before going for divorce. During this time period, the couples may try to settle their disputes amicably and resume living together as husband and wife. If reunion is not possible, the parties may proceed with the Second Motion to finalise the divorce proceedings.
Can a cooling period be waived off?
Yes, as per recent judgment of Honourable Supreme Court, cooling period can be waived off, with certain conditions. However, the cooling period is the mandatory provision to protect the marriage but in certain condition where the court believe that the marriage is irreparable, the spouses are living separately from more than 1 year, and waiting further will serves no purpose, then the Court may waive off the cooling period.
Step IV: Second Motion
After the completion of cooling period or waive off, the parties may proceed with the second motion. Hearing date for second motion was pre-scheduled by the Court. Both the parties have to present on the date scheduled with respective advocates. The learned Judge again interact with the parties to reverify their free consent for dissolution of marriage. If either spouse submits their desire to continue with the marriage, then the Court may again grant an additional cooling period for reconciliation, with a belief to preserve the marriage. However, if both the parties reaffirm their decision for separation and the Court is satisfied with their consent for divorce, the Court proceed with finagling the divorce by pronouncing the decree.
Can a Consent be withdrawn?
Yes, either party can withdraw their consent before the final decree of divorce. The Court will not proceed against the will of the parties.
What to do if spouse withdraw its consent from the mutual divorce?
Always try to reconcile with your partner. If not possible the go for contested divorce.
Conclusion
A mutual divorce is always advisable for the couples, where both are willing to end the marriage, as it is time and cost-efficient legal process. If you require assistance in drafting the petition, negotiating settlement terms, or representing you before the Family Court, approach a matrimonial lawyer who is equipped to provide professional, confidential, and comprehensive support throughout the entire process.
