What is Mutual Divorce?
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 honorable court, without putting forth any allegations against each other.
For instance, if the husband and wife have been living separately for a period of one year or more and are further unable to live together, and both have mutually agreed that the marriage has totally collapsed, they can be granted the divorce.
Research says that one of the fastest ways of being granted a divorce in India is through mutual consent as other options linger on for too long. The law says that all marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 can be annulled, provided the parties to marriage consent for the same in front of the court.
Requirements to be complied with for a Mutual Divorce:
1. The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation. But it does not seem necessary for the court to go into that matter, provided the condition of separate living under the same roof of the matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not to travel beyond the statutory condition of its jurisdiction.
2. The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
3. The parties have freely consented to the agreement of dissolution of marriage.
4. The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred.
How to File for Mutual Consent Divorce:
There are several steps involved in order to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:
1. Filing a Joint Petition:
The first step is the filing of a joint petition in the respective family court. This joint petition is to be signed by both parties. The divorce petition contains a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. This statement also has the agreement to split the assets, custody of children, etc.
2. Appearance of Both Parties in Court:
The second step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes this date and the parties appear along with their counsels.
3. Scrutiny of the Petition by Court:
The court thereafter scrutinizes the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter is proceeded with.
4. Recording of statement and passing of the order on First Motion:
After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6 month period is given is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.
5. Appearing for Second Motion:
After 6 months of the first motion or by the end of the reconciliation period, if both parties still don't agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording of statements before the court. In a recent judgement, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.
6. Decision of the Court:
The most important requirement for a grant of divorce by mutual consent is the free consent of both the parties. In other words, unless there is complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final.
What information/documents/materials are required for Mutual Divorce?
The following documents would be required for a divorce by mutual consent:
- Address proof of husband
- Address proof of wife
- Details of professions and present earnings of husband and wife
- Certificate of Marriage
- Family background information
- Photographs of marriage between husband and wife
- Evidence to prove that the husband and wife have been living separately for more than one year
- Evidence proving failed attempts of reconciliation
- Income tax statements
- Details of property and assets of the parties
- Certain other documents may also be required, depending upon the facts and circumstances of the particular case.
Advantages of Mutual Divorce
Taking a mutual consent divorce removes unnecessary quarrels and saves a lot of time and monetary resources. With the ever-rising number of applications being filed for divorce, mutual consent divorce is one of the best-given options.
For frequently questions on the mutual divorce Click here.
