A mutual consent divorce is a form of legal separation, where the couple peacefully agrees to dissolve their marriage which they both believe cannot be continued. The couple mutually agrees that their marriage was consensual and so is the divorce. The Hindu Marriage Act, of 1955, legalizes the mutual consent divorce if all the required conditions are fulfilled and the couple has already decided upon matters like alimony and custody if they have any children.
The couple can file a mutual consent divorce under the provisions of the Hindu Marriage Act,1955, section 13B, the court can grant the divorce if it feels that all the conditions are met and the marriage has no future.
Who can file a divorce by mutual consent?
Both the parties to the marriage i.e. the husband and wife can file a joint petition under Section 13-B of the Hindu Marriage Act for the grant of a decree of divorce by mutual consent. The conditions for filing for divorce and getting a divorce by mutual consent are expressly mentioned in the act and reproduced herein below:
13B. Divorce by mutual consent.
Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to marriage together, whether the such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.’
On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
WHEN ONE CAN APPLY FOR MUTUALLY CONSENTED DIVORCE
Husband and wife both should be willing to get separated is the first and foremost rule when it comes to a divorce with mutual consent. Also following things one should be aware of before filing for a divorce :
- Husband and wife should be staying separately for a period of a minimum of one year.
- The husband and wife both agreed to the divorce.
- They are unable to live together anymore.
- Minimum one year from the date of marriage
Steps to Follow for Mutual Consent Divorce
The couple seeking a mutual consent divorce can follow the steps stated below and can get one from the court:
- First of all the couple can go to a court, they can go to the family court or to the district court in the locality they both lived together or the locality of their matrimonial home, to file the petition.
- The couple can hire a lawyer, If they choose to file a petition on their own, then it can be relatively cheap.
- The couple in order to file a petition must be living separately for more than a year. The couple needs to file a statement.
- In the case of the absence of any party to present their statements then any family member can present the statement on the behalf of the parties through the lawyer or the counselor.
- This is known as the first motion after which the court is adjourned for 6 months. This period of adjournment is generally known as the cooling period. It is given by the court so that the couple can rethink the matter and if any one of them wishes to withdraw the petition can do so by stating their unwillingness to the court for the mutual consent divorce.
- This cooling-off period is given by the court, to prevent any hasty decision made by the couple on a whim or in a moment of anger. If the court feels that there are chances of no reconciliation then it can drop the cooling-off period. This completely depends upon the discretion of the court.
- The couple is required to agree upon matters like maintenance issues, child custody, and alimony. In the case of alimony, there is no such requirement of a fixed amount to be given, the allowance can be given on a monthly or annual basis. It can be given by the husband to the wife or by the wife to the husband as the case may be.
- The custody of the child/children is decided upon the basis of the interest of the child. Now a day’s joint custody is a good option. Here the legal custody lies with both parents only the physical custody is given to one of the two.
- After the cooling period, the second motion takes place. Both parties need to appear in front of the court and record their statements once again. After which the final hearing.
- The court after hearing the statements gives the final decree. If the court is satisfied with the statements and is assured that both parties have consented to the divorce it approves the petition.
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DOCUMENTS REQUIRED FOR DIVORCE WITH MUTUAL CONSENT
Common Documents are required for Filing a divorce petition:
- Marriage Certificate
- Address Proof – Husband and Wife.
- Four Photographs of Marriage.
- Income tax Statement of last 3 years.
- Details of profession and Income (Salary slips, appointment letter)
- Details of Property and Asset owned
- Information about family (husband and wife)
- Evidence of Staying separately for a year
- Evidence relating to the failed attempts at reconciliation
What is the Meaning of the Cooling-off Period in Mutual consent on divorce?
The Hindu Marriage Act, 1955 Section 13-B allows couples to seek divorce by divorce on mutual consent. Consensual divorce stipulates that both spouses agree to peaceful separation.
It is easy to legally dissolve a marriage by mutual consent. Section 13-B (2), Hindu Marriage Act, 1955, states a six-month cooling period between the first and last motions for divorce to explore the possibility of settlement and cohabitation. This cooling period is also known as the statutory period.
When Can Cooling-Off Period be Waived Off?
You can consider the following questions when you want to consider waiving the cooling period:
- How long did the marriage last?
- How long was the couple apart?
- Possibility of reconciliation
- How long was the couple together?
- How long has the litigation been pending?
- Existence of any other proceedings between the parties
- Whether the couple has a child/ children together
- Whether the parties reached a free settlement regarding maintenance, Alimony, or child custody.