Divorce by Mutual Consent or Mutual Divorce is when both husband and wife agrees equally with each other to dissolve their marriage.
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- Advice on Divorce Process
Under Section 13-B of the Hindu Marriage Act, 1955, partners can seek divorce by mutual consent by filing a petition before the court. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve it legally.
Divorce by Mutual Consent or Mutual Divorce is when both husband and wife mutually agree that they cannot live together anymore and that the best solution being Divorce, they would present a Mutual Divorce petition jointly before the honourable court, without putting forth any allegations against each other.
When can the divorce by mutual consent be filed?
- Husband and wife should be staying separately for the period of minimum one year, and have not been able to live together anymore
- Husband and wife both have consent for the divorce.
- Minimum one year from the date of marriage
Where to file a complaint against Medical Negligence?Where to file the divorce petition?
- The place where the marriage was conducted
- The place where the couple resides
- Place where wife resides currently
Important points to remember while having a divorce
- Child custody
- Alumni or maintenance
- Settlement of property and assets
Documents required for Mutual Consent Divorce
- Marriage Certificate
- Address Proof of both 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 an year
- Evidence relating to the failed attempts of reconciliation
Step by Step Procedure to file for Mutual Consent Divorce
- Step 1 : Petition for Divorce
Petition is to be filed under respective act or law in the Court of competent jurisdiction. Petition needs to be filed mutually in the Court with the intention to obtain divorce at any time after one year from the date of marriage.
- Step 2 : Appear before the Court
Both the parties need to prove that they have been living separately for a period of one year or more before the presentation of such petition.
The three conditions should be satisfied before moving the petition.
The petition is filed in the way of an affidavit stating the mutual consent as to dissolution of marriage and other agreed clauses regarding child custody, maintenance and alimony
- Step 3: Passing orders for statements on oath
Statements of both the parties are thereafter recorded.
- Step 4: 6 month Cooling Period
A cooling period of minimum 6 months and maximum 18 months is provided to the husband and wife if they wish to change their mind and reconcile. During the cooling period, either of the party has the right to withdraw the petition.
- Step 5: Final hearing of petition
If such petition is not withdrawn, the parties are summoned at a fixed date, where they consent and confirm the intention to separate or divorce.
- Step 6: Decree of Divorce
Decree of divorce is granted by the Court.
It is not compulsory to hire a lawyer for such case. But it is advised to seek a professional help. A competent lawyer will help you with a better prepartion of case.
A divorce between parties who are Hindu is governed by section 13(b) of the Hindu Marriage Act. Hindu covers all people who belong to Sikh, Jain or Buddhist community.
A Muslim divorce is governed by Shariat and Dissolution of Marriage Act 1939
A Christian divorce is governed by the Indian Christian Marriage Act, 1872.
For people belonging to other religion, their divorce is governed by Special Marriage Act, 1954 which governs all other divorce without giving any special preference to religion.
If any such party withdraws a case, no decree of divorce is passed.
Cooling off period is the time which is given to the husband and wife by the court after they file for divorce in any competent court to make up their mind if they want to continue with the divorce proceedings or want to withdraw the case. Cooling off period can be waived off with accordance the scenario of the case and nature of the couple.
In that case, the party is left with the remedy to file for a normal divorce petition on grounds such as cruelty, desertion, conversion or renunciation.
The divorce by mutual consent is the final binding as it is provided after knowing and getting the consent from both the parties at first and they both have consented to the said divorce. Such decision can be only challenged if the consent was obtained through fraud, force, coercion or undue influence.
The maintenance and alimony in mutual consented divorce is decided by a mutual agreement between the parties or husband and wife who are getting divorced. The amount is decided by a mutual agreement keeping in mind the social status, maintenance of wife, maintenance and education expenses of the child, income of the husband, wife’s income and employment status.
The question of custody of child is decided by both the parents mutually, that is husband and wife as both are seen competent to have the custody in a mutually consented divorce. In the scenario of joint custody, the physical custody of the child is with one parent and the legal custody of the child remains with both the parents.
Yes, it is required that both the parties to attend the proceedings.
A person can file for divorce even before the completion of period of one year but only on specific grounds such as:
- Not heard of for 7 years
- Mental Disorder
- Veneral Diseases
No, it is not necessary per se to register a marriage but it is advised to get a marriage registered to increase the value of the divorce case.