Mutual Consent 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.

In cases of divorce by mutual consent, the petition is filed jointly by the husband and wife. Under Section 13B of the Hindu Marriage Act, 1955, the parties must ordinarily wait six months (the cooling-off period) between the first and second motion. However, in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Supreme Court held that this six-month period under Section 13B(2) is directory, not mandatory, and that a family court may waive it in an appropriate case. The waiver is discretionary, not automatic; the court may dispense with the period only if it is satisfied of the following four conditions:

1. The statutory cooling-off period of six months under Section 13B(2), together with the one-year separation period required under Section 13B(1) of the Hindu Marriage Act, has already expired before the first motion is moved.

2. All efforts at mediation and conciliation — including under Order XXXIIA Rule 3 of the Civil Procedure Code, Section 23(2) of the Hindu Marriage Act and Section 9 of the Family Courts Act — have failed, and there is no likelihood of the parties reuniting.

3. The parties have genuinely settled their differences, including alimony, maintenance and custody of the children, and no such issue remains pending between them.

4. The court is satisfied that making the parties wait any further would only prolong their agony and serve no useful purpose.

On satisfaction of these conditions, the Supreme Court in Amardeep Singh v. Harveen Kaur held that the family court may waive the six-month period and proceed to grant the divorce. This is an important 2017 judgment that allows couples seeking divorce by mutual consent to approach the family court for a waiver of the cooling-off period.

Petition for mutual consent divorce can be filed at any of the following places with the help of Mutual divorce lawyer :-

1. Place where marriage had taken place

2. Place where husband and wife last resided together.

3. Place where the wife is residing at the time of filing of the Petition

Requirements to be complied with for a Mutual Divorce:

The parties have been living separately for a period of not less than one year.

No reconciliation or adjustment is possible between them.

The parties have freely consented to the agreement of dissolution of marriage.

Process/Steps involved in Mutual Divorce:

Joint Petition to be filed

Appearance of Parties

Scrutiny of the Petition by Court

Recording of Statement and passing of order on First Motion

Second Motion - After 6 months if parties are still firm on the decision of divorce

Judgment is passed by the Hon’ble Court.

The following documents would be required for a divorce by mutual consent:

The joint petition for divorce signed by both parties

Certificate of marriage

Identity proof of the husband and wife

Address proof of the husband and wife

Photographs of the marriage between husband and wife

The settlement agreement or Memorandum of Understanding (MoU) recording the terms agreed between the parties

Evidence to prove that the husband and wife have been living separately for more than one year

Documents that may be requested in specific cases

Depending on the facts and the directions of the court, the following may also be sought but are not required in every case:

Details of professions and present earnings of the parties

Income tax statements

Details of property and assets of the parties

Family background information

Certain other documents may also be required.