The Family Law Chambers

MUTUAL CONSENT DIVORCE

Mutual Consent Divorce is a hassle free, amicable and expeditious way of obtaining a Divorce in an estranged relationship, where marriage between the couples in marriage is irretrievably broken down beyond any scope of repair and when parties have come to a conclusion that the marriage had reached a phase where being in marital relationship has become meaningless.

In mutual consent divorce, the parties amicably and mutually discuss, negotiate and come to terms and conditions, basing on which they wish to obtain divorce by moving a Divorce Petition before the concerned Family Court, and the Parties amicably agree on terms of Permanent Alimony, Maintenance, Child Custody etc.,. In a case where Parties have a child, the parties can amicably discuss, decide and design Shared Parenting plan, Maintenance etc., in regard to minor child. Mutual Consent allows the parties to freely decide and conclude on terms of separation as per the circumstances between the parties, in accordance with law, without any interventions and prolonged litigation.

Conditions for Applying for Divorce:

1. One year separation between the Parties.

2. The parties should arrive at mutual terms and conditions for separation.

Documents Required for Mutual Consent:

1. Marriage Photos

2. Marriage Certificate

3. Marriage Invitation Card

3. Aadhar Card of Spouses

4.Birth Certificate of minor Child/ Children.

* If any documents necessary depending on the facts and circumstances of the case.

Filing of Divorce Petition and Procedure:

1. Filing Petition: The parties may file a Divorce Petition seeking dissolution of marriage by way of Mutual Consent, as per the applicable personal laws for the parties pertaining to their marriage. At the time of filing Mutual Consent Petition, the Parties shall appear before the Family Court to assert their interest on obtaining a divorce by way of mutual consent. The case will be numbered and the Parties will be given a date after Six (6) months for filling their evidence.

2. Cooling Period or Reconciliation Period: After filing a petition for mutual consent the parties shall have to wait for 6 months and this period is generally called cooling period or reconciliation period. In case, the parties after 6 months wants to ahead with divorce, then the parties will appear on second motion hearing and file evidence and enter witness box. In case parties intend to live together, they may withdraw the petition. As such, as the name suggests, this period is waiting period before divorce, allowing parties to take informed decision.

3. Second Motion Hearing: After six months, in case parties are intending to move forward with divorce, the Parties shall file their evidence and enter witness box to confirm on their decision to obtain Divorce by mutual consent. Basing on the evidence lead by the parties, the courts shall grant divorce.

4. Appeal Period: The Decree of Divorce by Mutual consent will attain finality after completion of three months from the date of obtaining Decree of Divorce, and only after appeal period, the parties may remarry.

MUTUAL CONSENT DIVORCE| MUTUAL DIVORCE PROCEDURE FOR FILING DIVORCE

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FREQUENTLY ASKED QUESTIONS

Please reach us at contact@thefamilylawchambers.com, if you cannot find an answer to your query.

Mutual Consent Filing is a systematic process where, the Memorandum of Understanding delineating mutual and amicable terms of separation will be filed in the Court of proper jurisdiction for seeking Divorce. In this process, it is imperative that terms are clearly and unambiguously set out to “once and for all” put an end to all disputes and problems between the parties. As such, you need expert legal counsel intervention to ensure that the terms are drafted and filed as per your matrimonial situation and circumstances, since “one solution does not fit all” and our expert team of lawyers draft Memorandum of Undertaking taking into consideration your situation and concerns, by designing and drafting petition to suit your requirement.

1. CAN ONE PARTY MOVE A PETITION FOR MUTUAL CONSENT?

No, because as the name implies, both wife and husband have to mutually come forward to file and conclude divorce proceedings. In case, either of wife or husband, does not cooperate with the proceedings, then mutual consent will not be concluded.

2. HOW LONG DOES MUTUAL CONSENT DIVORCE PROCESS TAKES?

Generally 6 months. However, personal laws applicable to the marriage will also decide the timeframe. For example, as per the Hindu Marriage Act, it is 6 months cooling period, and upon completion of 6 months the parties appear and lead evidence on the date of second motion, for completing the process, thereafter the matter will be reserved for orders.

However, there is no such stipulation as per personal laws applicable to Muslims.

3. IS SIX (6) MONTHS WAITING PERIOD COMPULSORY FOR SEEKING MUTUAL CONSENT DIVORCE?

Not for every case. The law provides exemption on certain circumstances, and six months period at the discretion of court may be waived.

4. DO SAME PROVISIONS APPLY TO ALL PERSONS?

No. The Personal Laws for seeking divorce is different for Hindu, Christians and Muslims and further different for Special Marriages and Foreign Marriages, and Arya Samaj Marriages. As such, you need consult to lawyers before applying for Divorce.

5. ANY DIVORCE DOCUMENTS EXECUTED PRIVATELY OUTSIDE THE COURT AMOUNTS TO DIVORCE?

No, only courts have power to dissolve the marriage and as such any agreements executed outside the court will not dissolve the marriage.

6. ARE THERE ANY GUIDELINES FOR SETTING OUT TERMS BETWEEN THE PARTIES FOR DISSOLVING MARRIAGE?

No. However, the parties within the bounds of law may amicably and mutually decide on terms for the dissolution of marriage. In fact, the parties are free to decide their terms for seeking dissolution of marriage.

7. IS PAYING MAINTENANCE OR PERMANENT ALIMONY MANDATORY FOR FILING

DIVORCE PETITION?

Not necessarily. The parties are free to decide. Depending on the facts of each case, the answer would differ, as such you may consult a lawyer for proper advice in this regard to know your rights and obligations under the law.

8. WHAT HAPPENS IN CASE THERE ARE PENDING MATRIMONIAL OR CRIMINAL CASES BETWEEN THE PARTIES?

In case there is any pending Section 498A of the IPC and Domestic Violence Cases or any other kind or nature of pending cases between the Parties, then, the parties will agree to resolve and put an end to all cases between them. Depending on gravity and nature of offence, the Parties may prefer settlement through quash proceedings before the Hon’ble High Court or withdraw the cases, as the case may be. You may consult a lawyer for designing this settlement process for you.

STEP BY STEP PROCESS - MUTUAL CONSENT PROCESS

DIVORCE PETITION

The parties may file a Divorce Petition seeking dissolution of marriage by way of Mutual Consent, as per the applicable personal laws for the parties pertaining to their marriage. At the time of filing Mutual Consent Petition, the Parties shall appear before the Family Court to assert their interest on obtaining a divorce by way of mutual consent. The case will be numbered and the Parties will be given a date after Six (6) months for filling their evidence.

COOLING PERIOD

After filing a petition for mutual consent the parties shall have to wait for 6 months and this period is generally called cooling period or reconciliation period. In case, the parties after 6 months wants to ahead with divorce, then the parties will appear on second motion hearing and file evidence and enter witness box. In case parties intend to live together, they may withdraw the petition. As such, as the name suggests, this period is waiting period before divorce, allowing parties to take informed decision.

SECOND MOTION HEARING

After six months, in case parties are intending to move forward with divorce, the Parties shall file their evidence and enter witness box to confirm on their decision to obtain Divorce by mutual consent. Basing on the evidence lead by the parties, the courts shall grant divorce.