Mutual Divorce
Mutual consent divorces are those where both husband and wife agree to the divorce. It involves a physically and mentally demanding procedure. Still, it is much simpler than the long-drawn litigation that follows when there is no consent from either spouse. The court assumes that the husband and wife are willing to work together to resolve divorce matters. A variety of Acts dictates the divorce procedure in India.
If the couple were married under the Hindu Marriage Act 1955, the rules set in this Act would apply. If married under the Special Marriage Act 1954, the same applies. Other divorces follow the Divorce Act of 1869. Section 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, require couples to have lived separately for at least one year before divorce proceedings can begin. If married under Divorce Act 1869, this period is extended to two years. Living separately does not necessarily mean living in different locations; the couple only needs to prove that they have not been living as husband and wife during this time period.
Procedure for Divorce with Mutual Consent
Filing the Petition The husband and wife need a lawyer to handle the divorce matter. The lawyers will help them file the Petition at one of the places where the two last resided. Where the two were married. Where the wife currently resides. Grant of First Motion After filing the Petition, the couple will record their statements in the judge’s presence at a district court.
The two parties are assumed to agree to the divorce and must state this in court. They must also state their reasons for the divorce and the terms they have decided to separate (visitation rights, custody, etc.). If either party cannot attend court, they may grant power of attorney to any other person (preferably a family member) to speak for them. Once heard, the court grants the First Motion.
Information about the time period of separation will also need to be mentioned. The Petition will need to be submitted and signed before the judge.
In the Cooling-off Period, the couple is expected to attempt reconciliation during the ensuing six to eighteen months before filing the second Motion, at which point the divorce will be granted. Therefore, the couple must wait at least six months before they can approach the courts again with the second Motion. Suppose either the husband or wife declares to the court that the other was uncooperative in reconciling. In that case, the court may disallow divorce with mutual consent.
Second Motion With the end of six months — and up to eighteen months — the couple can file the second Motion, and the judge will dissolve the marriage. Documents Required Address proof of husband and wife Marriage certificate 4 Passport-size photographs Evidence proving separation for over a year Evidence proving failed reconciliation attempts Income tax returns Details of assets owned by husband and wife, both jointly and individually Cost of Divorce in India The cost of filing the Petition for divorce is nominal in India, at around ₹ 250.
The price, of course, is the advocate fee, which varies significantly with the advocate you choose. Every lawyer will charge you separately per appearance and for any consultation and paperwork. A mutual consent divorce is likely to cost anywhere from ₹ 5,000 to ₹ 50,000, depending on the case’s complications and the lawyer’s experience. Getting Prepared for Mutual Consent Divorce A mutual consent divorce requires the husband and wife to be on talking terms. They must agree on several important matters, such as maintenance, custody and visitation rights and the separation of finances. This means much discussion even before getting a lawyer. While trying hard to reach an agreement is uncomfortable, it is essential since the other route (without mutual consent) is challenging and can take years.
Agreement Necessary Custody of Child
Husband and wife must decide who will get custody of the child/children or if custody of the child/children is to be shared. Either arrangement will be agreed to by the court, so long as it’s been mutually agreed to.
Alimony
Money given to the wife by the husband or the husband by the wife must be decided by the parties. This can be a lump-sum amount or a periodic payment.
Return of Items: During a marriage, much is interchanged. Both parties may invest in a property only in the name of one spouse; the wife’s jewellery may be in the husband’s possession. For a divorce to be mutual, all of this must be taken care of.
Litigation expenses: The parties must decide how litigation expenses should be divided. This is particularly important if one spouse is dependent on the other financially.
Documents Required
- Address proof of husband and wife
- Marriage certificate
- 4 Passport-size photographs
- Evidence proving separation for over a year
- Evidence proving failed reconciliation attempts
- Income tax returns
- Details of assets owned by husband and wife, both jointly and individually
By establishing clear guidelines and legal frameworks for mutual consent, we can ensure that individuals are protected and that their rights are respected. Mutual consent laws not only provide protection but also encourage healthy and respectful relationships. They promote open communication, respect, and a culture of mutual understanding. Contact us today for a consultation and let us help you.