What are the important points to remember while filing for divorce?

Child Custody -Which partner will get child custody after divorce

Alumni/Maintenance – If one of the partner is unable to meet their daily expenses then other needs to pay a certain sum of amount. It is subject to mutual understanding between the partners (husband and wife).

Settlement of Property and Assets – Settling the ownership rights of property and asset between the parties (Husband and wife).

Mutual Consent Divorce: Conditions

(i) Both spouses must live separately for at least one year. Minimum one year from date of marriage.

(ii) Both spouses feel that they cannot live together.

(iii) Both the husband and wife mutually agree that their marriage has collapsed

(iv) Both parties agree to comply and file jointly for a mutual divorce without any undue influence.

Important documents for filing Mutual consent Divorce in Bangalore

• 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 one year
• Evidence relating to the failed attempts of reconciliation

Where to file mutual consent divorce?

The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e., their matrimonial home. It can even be presented in the court of the city/place where the marriage was solemnized.

Step by Step Procedure for Mutual Consent Divorce

• Step 1: Drafting and Filing Petition: The drafted application needs to be submitted at family court along with applicable court fees. You need the right advice and guidance of a trusted and experienced divorce lawyer for the drafting of the petition.
• Step 2: Issuing Summons (Court Notice): A formal notice(summons) is issued by a court is sent to the second party, which is generally dispatched by speed post. The purpose of sending a summons is to let the other party know that the process of divorce has been initiated by their spouse. If the husband has initiated the procedure summon will be sent to the wife.
• Step 3: Response (to Court Notice): After receiving the Summons, the party needs to be present at the court on the date mentioned in the summons. If the party fails to attend then the court will give a chance of hearing even if that is failed court will issue an order and will end the process of divorce.
• Step 4: Trial at Court: In this step, the court will hear both the parties along with proper evidence and witnesses. Respective lawyers will conduct the examination and cross-examinations of parties, witnesses, and evidence in front of the court. This step is very important step while filing a divorce.
• Interim Orders: In interim orders, any party can file a temporary petition with respect to maintenance and child custody before the court. This can be filed after hearing and during the pendency of the court proceedings. This order stays in power until the final court procedure of the Divorce. Not every divorce proceeding's gone through interim orders. Filing petition is optional and is solely dependent on the spouse (husband or wife).
• Step 5: Argument: Here, the respective advocates assigned by both parties will argue before the court on the basis of documentary evidence filed and depositions of the witnesses. To win the argument the experience and conduct of lawyer matter’s a lot.
• Step 6: Final order (Divorce completion): The final order will be passed by the court upon successful completion of all the stages mentioned before. If any party is not happy with the final order, they can challenge the same in higher court.

How much time will it take to get a divorce by mutual Consent?

The average time to get a divorce via mutual consent can vary between six months and two years, depending on how good your documents are, and if the court is satisfied with your petition.

Can mutual consent divorce obtained by notary?

No, a mutual consent divorce cannot be obtained through Notary paper in India. In fact, a valid decree of mutual divorce can only be granted through the Family Court.

Can a divorce be possible by mutual consent?

When you and your spouse have amicably resolved terms of separation to part ways, you can dissolve the marriage by filing a mutual consent divorce petition (under Section 13B of the Hindu Marriage Act, 1955) (under Section 28 of the Special Marriage Act, 1954) before the Family Court.

Is it possible to get mutual divorce without going to court?

It cannot be done on any stamp paper or without Court's involvement. Both Husband/wife need to file a joint petition for divorce before the court and it takes 6 months for a divorce decree to be passed by the court. This 6 Months period can also be waived off by the court on its discretion depending on the circumstances.

What is the advantage of a mutual consent divorce?

• It removes unnecessary disputes thereby saving plenty of time as well as money for both the spouses
• Decisions pertaining to child custody, maintenance as well as property rights can easily be agreed upon mutually even before the marriage is dissolved.
• Requires only two formal court appearances
• Co-parenting made easier
• Hassle-free
• Helps end the relationship amicably
• Provides speedy disposal of a divorce case
• The court simply confirms and legalizes whatever is mutually agreed upon by the couple.

What happens when mutual consent is obtained by force or coercion?

If the consent for mutual divorce has been obtained through force or coercion, it is the responsibility of the court to appropriately examine and find out if the consent for divorce has not been obtained maliciously. However, if the court is unsuccessful to correctly determine if the consent for the divorce was given freely or not then such a divorce decree cannot and must not be regarded as a decree by mutual consent and therefore, the aggrieved spouse can file an appeal in the higher court to struck down such a decree.

Is 1 year separation mandatory for mutual divorce?

Living Separately for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation, the parties must have been living separately. The expression 'living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude, they have been living separately for a period of one year immediately preceding the presentation of the petition.

What if wife is not ready for mutual divorce?

If your wife is not ready for a mutual consent divorce then it is not possible to file divorce under mutual consent. In such circumstances file a petition for divorce in the court and it needs to be contested. There are two ways of getting divorce in India 1. Mutual Consent Divorce 2. Contested Divorce.

Do we need to go to court for mutual divorce?

Yes. Both spouses must have legal representation during the divorce proceedings The court will set a date for divorce hearing. At this hearing both spouses must present evidence that supports their case for mutual consent divorce.

When can one apply for mutually consented divorce?

The first requirement is that the parties should be living separately for a period of at least one year before filing the divorce petition. The Supreme Court of India in the case of  Sureshta Devi v Om Prakash has ruled out “that the expression living separately connotes not living like husband and wife. It has no reference to the place of living. The parties may live under same roof by way of circumstances, and yet they may not be living as husband and wife. What seems to be important is that they have no desire to perform marital obligations and with that they have been living separately for a period of one year immediately preceding the presentation of the petition.” It has been ruled out by Supreme Court in various cases that the expression “have been living separately’ does not necessarily mean physical separation or living separately and apart what is material is that no marital obligations are performed between the spouses and they are not living together as husband and wife.

The second point that has to be established is that the parties have not been able to live together.

In  Sureshta Devi v Om Prakash , the Supreme Court observed that expression “have not been able to live together” seems to indicate the concept of broken down marriage so much so that there is no possibility of any reconciliation. The parties need not establish the fact that they have not been able to live together. The very fact that they have presented a petition by mutual consent is indicative of this fact that they have not been able to live together. However, it is very imperative to determine whether consent given by both the parties is free and not obtained by any kind of force, fraud or undue influence.

After satisfying the above two requirements and filing a joint petition for divorce by mutual consent.

Is it mandatory for parties to be present in court during the mutual consent divorce?

Both the parties are required to be present in the Court on the date of filing the Divorce Petition to comply with the verification process in the Court Office. The family court judge will review the contents of the petition and all documents. The court may try to reconcile differences between spouses. However, if that is not possible, the matter will continue.

Is the statutory cooling off period of six months mandatory or Directory?

There have been conflicting judgements on this regard that whether the courts should mandatorily wait for a period of six months as given in the sub section (2) of Section 13B. In the  Grandhi Venkata Chitti Abbai  case, the court observed that- “If Section 13-B (2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated more so when the parties started living separately for a considerable time.

Thus s 13-B (2) though is mandatory in form is directory in substance. Likewise, in the case  of Dinesh Kumar Shukla v Neeta , it was held that the waiting period is directory in nature and it can be brought down from 6 months (provided the mandatory requirements of s 13-B (1) are fulfilled) when all efforts at reconciliation failed.

But, in the case of  Hitesh Narendra Doshi v Jesal Hitesh Joshi , it was held that “the provision has a definite purpose and object, i.e., giving time to the parties for introspection and reconciliation. That purpose and object stares at us so clearly by the language expressed in s 13-B (2) of the Act robbing away the right of the court from considering the petition earlier than six months.”

In the case of  Ashok Hurra v Rupa Ashok , it was held that “in exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.”

Therefore, the courts have been inclined more towards waiving off this period if the circumstance of the case demands so and where there is no chance of reconciliation between the parties.

But as it is evident from many cases where there is no possibility of reconciliation between the parties and the marriage has been broken down irretrievably, the courts should follow the spirit of law more than the formal requirements of the section.

How is the issue of maintenance handled in Mutual Divorce?

In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of maintenance which will be given either by the husband to the wife or wife to the husband as the case may be.

While deciding the amount of maintenance, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.

In case the parties mutually agree that there is no requirement to pay any maintenance, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income.

How is the child custody decided in Divorce matters?

Generally, the custody of a minor goes to the mother. In case of a mutual divorce, you have to mention the custody details in the petition itself. As it is a mutual one such custody is to be agreed by both the parties.

In most of the cases in India, the custody of the child is granted, by the family court, to one parent and the access of child is granted to both of them.

What is MOU in Divorce?

Memorandum of Understanding, it is more like a mutual settlement which has been penned down in writing and acts as a documentary proof of such terms which have been mutually accepted by the parties to the divorce.

“MOU” acts as a Non – Binding, non – Legal Agreement based upon which an Advocate prepares a “Separation Agreement” which when signed and notarized by the parties becomes legally binding and enforceable. The “MOU” in itself does not create any liability, it is just the basis of understanding which is taken into consideration while preparing the “Separation Agreement”

A “MOU” deals majorly with the following things and provides the guidelines, on the basis of which “Separation Agreement” is created accordingly. They are as follows: –

• The understanding on the basis of which both the spouses are divorcing.
• The payment of maintenance.
• The basis on which properties shall be shared.
• The decision about Child Custody/Guardianship and maintenance of the same.
• Duties and Liabilities of the Husband and Wife towards their child/children.
• Conditions of Separation after Divorce.

Provisions in law different for different religions in India for Divorce?

• Hindu Marriage Act, 1955
• Muslim Personal Law (Shariat) Application Act, 1937
• Muslim Dissolution of Marriage Act, 1939
• The Divorce Act, 1869
• Special Marriage Act, 1954
• Foreign Marriage Act, 1969

Important Judgements in Mutual divorce?

• Smt. Sureshta Devi vs Om Prakash on 7 February, 1991
• Ashok Hurra vs Rupa Ashok Hurrarupa Bipin Zaveri on 10 March, 1997
• Reynold Rajamani & Anr vs Union Of India & Anr on 30 July, 1982
• Hitesh Bhatnagar vs Deepa Bhatnagar on 18 April, 2011
• Smruti Pahariya vs Sanjay Pahariya on 11 May, 2009
• Vennangot Anuradha Samir vs Vennangot Mohandas Samir on 2 December, 2015
• Inderjit Singh Grewal vs State Of Punjab & Anr on 23 August, 2011
• Bhaskar Lal Sharma & Anr vs Monica on 27 July, 2009
• Sanghamitra Ghosh vs Kajal Kumar Ghosh on 20 November, 2006
• Anil Kumar Jain vs Maya Jain on 1 September, 2009

What is the role of an advocate in Mutual Consent Divorce?

Divorce is a stressful time for everyone involved. Hiring an advocate to complete a divorce is one way to reduce the stress of the divorce. An Advocate will take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce advocate can give you expert advice on how to handle your divorce owing to their experience in handling such cases. They can help you to avoid significant mistakes that may cause financial harm. Thus, by hiring an advocate a person can make sure that they can avoid delay and get the divorce completed as quickly as possible.

What is the role of mediation in divorce?

Mediators do not give a judgment but allow resolution of the disagreement or disputes between the parties. Under mediation, open communication is held between the parties so that both of them can clear their doubts and misunderstandings and with the help and suggestions of the mediator, come to a common conclusion.

Can a party withdraw the petition for Divorce?

Yes, one party to the proceedings can withdraw the petition for mutual divorce at any time within the time period of 6 months given by the court. Withdrawal can be done by filing of application in the court of law where the petition to obtain divorce was initially filed.

Common Mutual Consent Divorce Questions

Can a party remarry without getting a Divorce?

To remarry, getting a divorce is a pre-condition. If you remarry without getting a divorce then it is a punishable offense with 7 years’ imprisonment.

When can I remarry after divorce?

After obtaining divorce decree from the family court, you will have to wait till the completion of the appeal period of 90 days after which you can marry again before the concerned marriage sub-registrar.

What are the fees for mutual consent divorce?

While there is no fixed rate for lawyers in India, on average, a mutual divorce can cost anywhere between 20,000 and 50,000. All lawyers take a fee depending on their stature, experience, and skill.