Considering a Mutual Consent Divorce? This guide explains the process into four steps. Divorce by mutual consent is a legal process in India that allows married couples to end their marriage amicably. This method is less time-consuming and less stressful compared to contested divorces. Here, we will explain the legal provisions, new procedures, how the six-month cooling-off period can be waived off at the court’s discretion, how to draft divorce papers i.e. Plaint or settlement agreement and important considerations for spouses seeking a mutual consent divorce in India, including aspects related to child custody.
Legal Provisions of Mutual Consent Divorce
Mutual consent divorce is governed by:
1. Section 13B Hindu Marriage Act, 1955 – Applicable to Hindus, Buddhists, Jains, and Sikhs.
This section provides for divorce by mutual consent. It stipulates that the spouses must have been living separately for at least one year and that they have mutually agreed to dissolve the marriage.
2. Section 28 Special Marriage Act, 1954 – Applicable to couples married under this act or who cannot divorce under their personal laws.
This section is similar to Section 13B, it allows for mutual consent divorce for couples married under the Special Marriage Act.
3. Section 10A THE DIVORCE ACT, 1869 – Applicable to Christians.
The provision is applicable to Christians and requires that the spouses have been living separately for at least two years before filing for mutual consent divorce.
Procedure for Mutual Consent Divorce In just four steps
Step 1: Joint Petition
Both spouses must file a joint petition in the family court. The petition should state that they have been living separately for one year and have mutually agreed to dissolve the marriage. The petition must be signed by both parties.
Step 2: Cooling-off Period
The court mandates a six-month cooling-off period from the date of filing the first motion petition. This period is meant to allow the couple to reconsider their decision. During this time, the couple is expected to explore the possibility of reconciliation.
Simply means, After filing a joint petition, the court gives the next six month period to the couple to rethink about the divorce and if there is any chance of reconciliation, they can attempt to work through their issues with the help of a counselor or mediator before finalising the divorce.
Waiver of Cooling-off Period
As per a 2017 Supreme Court ruling in the case of Amardeep Singh v. Harveen Kaur, the six-month cooling-off period can be waived off at the court’s discretion if the couple has genuinely settled all differences and there is no possibility of reconciliation. The court considers factors such as the period of separation, the settlement of alimony, custody of children, and any other pending issues.
The relevant citation from the Supreme Court ruling is: Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 “The period mentioned in Section 13B(2), is not mandatory but directory. It will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”
Step 3: Second Motion
After the cooling-off period (or its waiver), the couple must file a second motion before the court. During this hearing, the court verifies the genuineness of the consent and the settlement terms. Both parties need to be present for this hearing.
Step 4: Decree of Divorce
If the court is satisfied with the genuineness of the petition and the mutual consent, it grants a decree of divorce, making the separation legal and binding.
How to draft Divorce papers i.e divorce Petition or Settlement Agreement
A comprehensive Petition or Settlement agreement is crucial for a mutual consent divorce. It should include following factors:
- Division of Assets and Liabilities :
Both parties must agree on how to divide their joint assets, such as property, bank accounts, and investments, as well as any joint debts or liabilities.
- Maintenance (Alimony):
The agreement should specify the amount and terms of alimony or maintenance, if any, to be paid by one spouse to the other. This can be a one-time lump sum payment or a periodic payment.
- Child Custody and Support :
If the couple has children, the agreement must include terms for custody, visitation rights, and child support. The welfare of the child is paramount, and the court will consider this while approving the agreement.
- Any Other Mutual Agreements :
This may include issues like the division of household items, pets, and any other relevant matters.
Child Custody
In cases involving children, the court prioritises the welfare of the child. Child custody can be:
- Joint Custody : Both parents share custody, but the child lives with one parent and the other parent has visitation rights.
- Physical Custody : The child lives with one parent, and the other parent has visitation rights.
- Legal Custody : Both parents retain decision-making rights regarding the child’s education, health, and welfare.
The terms of custody and visitation should be clearly outlined in the settlement agreement.
Fast-Track Divorce
- To expedite the process:
- – Ensure all documents are complete and correctly filed.
- – Mutual agreement on all terms should be genuine and undisputed.
- – If eligible, request the court to waive off the cooling-off period based on the criteria set by the Supreme Court.
Documents Required
The following documents are generally required for filing a mutual consent divorce:
- – Joint divorce petition
- – Marriage certificate or Marriage card or affidavit
- – Address proof of both spouses ( Aadhar card, passport etc.)
- – Four passport-size photographs of both spouses
- – Evidence supporting the separation period (like rent agreements or affidavits)
- – Details of the proposed settlement agreement
Latest Supreme Court judgement on divorce by mutual consent
In a landmark judgment on May 1, 2023, a five-judge Constitution Bench of the Supreme Court of India addressed the issue of divorce by mutual consent. This case is yet to be assigned a final citation, but its impact is significant.
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Madhya Pradesh High Court’s Judgement on Unnatural Sex and Marital Rape
The Court made two significant pronouncements:
- Irretrievable Breakdown as a Ground for Divorce: The Court recognized “irretrievable breakdown of marriage” as a valid ground for divorce under Article 142 (1) of the Constitution of India. This offers an additional avenue for couples seeking dissolution of their marriage.
- Expedited Mutual Consent Divorce: The Court clarified its authority to grant divorce by mutual consent without requiring the mandatory six-month waiting period mandated under Section 13B of the Hindu Marriage Act, 1955. This can be invoked in exceptional circumstances using its powers under Article 142.
This judgement essentially provides couples seeking divorce by mutual consent a potentially faster option in specific situations. However, it’s crucial to consult with a qualified legal professional to understand how this applies to your specific case and explore the best course of action.
By following the legal procedures and ensuring all pleadings or agreements are mutual and in the best interest of both parties, including children. Consulting with a legal professional is always advisable to ensure compliance with all legal requirements and to facilitate a faster resolution. This approach not only saves time and resources but also helps maintain a cordial relationship between the spouses post-divorce.
Disclaimer:
This article is intended for informational purposes only and does not constitute legal advice or counselling. The procedures and legal requirements for mutual consent divorce in India may vary based on state-specific rules and regulations. Readers are advised to consult with a qualified legal professional or lawyer to obtain guidance tailored to their specific situation and to ensure compliance with applicable laws and court procedures in their respective state or region.