Breaking Up without Breaking Down: A Guide to Mutual Consent Divorce in India

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Introduction

Divorce is an unfortunate reality of life and can be a stressful and emotionally draining process for all parties involved, whether it’s settling legal processes or dividing assets. However, mutual consent divorce can be an easier and less stressful option for couples looking to part ways. In this article, we will discuss the legal, financial, emotional aspects of mutual consent divorce and its prevalence in India.

Definition of Mutual Consent Divorce

Mutual consent divorce is a type of divorce where both parties agree to end their marriage amicably and without any disputes. It is a process where both parties agree to the terms and conditions set out in the divorce agreement without any coercion or influence.

Importance of Mutual Consent in Divorce

Mutual consent is important in divorce as it helps to ensure a fair and equitable settlement. Divorce can be a traumatic experience, but mutual consent can make the process less stressful, faster, less costly and may preserve the privacy of both parties.

Legal Aspects of Mutual Consent Divorce in India

In order to provide a legal binding and recognized dissolution of a marriage, there are several provisions available to Indian Citizens seeking mutual consent divorce. These options includes

  •      Section 13B of Hindu Marriage Act, 1955
  •         Section 28 of the Special Marriage Act, 1954
  •         Section 10A of the Divorce Act, 1869
Legal Requirements for Filing Mutual Consent Divorce 
  • No divorce petition can be filed within one year of the marriage; 
  • Both parties have been living separately for a year or more and have not been able to cohabitate with each other; 
  • there is no chance of reconciliation between them; 
  • Both parties must agree to dissolve the marriage, and the terms and conditions of the divorce agreement must be mutually acceptable which includes maintenance or alimony, child custody, criminal cases, if any, to be withdrawn with an assurance not file in future, return of stridhan, and assurances not to defame each other in future; 
  • Both parties must jointly file a petition for divorce in court for the dissolution of marriage. 
Court to which the petition shall be presented to the District/Family Court within whose  jurisdiction:
  • the marriage was solemnized
  • husband and wife last resided together.
  • the husband is residing after separation.
  • the wife is residing after separation.
Documents required for filing Mutual Consent Divorce under Section 13B of the Hindu Marriage Act, 1955: 
  • Marriage Certificate in case the marriage is registered otherwise, social marriage photo, wedding cards, etc. 
  • Aadhaar Card or Voter’s ID Card of both the parties
  • Passport size photograph of both the parties
  • Birth Certificate of the Child, if any
Documents required for filing Mutual Consent Divorce under Section 28 of the Special Marriage Act, 1954: 
  • A marriage Certificate is a must 
  • Aadhaar Card or Voter’s ID Card of both the parties 
  • One passport-size photograph of each party
  • Memorandum Of Understanding, if any
Court Procedures for Mutual Consent Divorce

After filing the petition, the court may order a minimum waiting period of six months during which the couple is expected to attempt reconciliation. After this waiting period, if both parties still wish to divorce, the divorce decree will be granted based on the mutual agreement of both parties.

Waiver of the 6 months waiting period

This period can be waived off in special situations, including those where the court is convinced that the chances of reconciliation are slim and further delay would only cause more pain to the separating spouses. This was established in the landmark case of Amardeep Singh vs. Harveen Kaur.

Should the wait period be waived, the court may refer the couple to a mediation process to help the parties come to an amicable agreement. It’s important to note that a Mutual Consent Divorce requires the separated couple to mutually agree on division of assets, custody of children if any, and other legal arrangements. The process can take anywhere from a few months to a year, depending on the complexity of the case and other factors.

Benefits of Mutual Consent Divorce in India 
  • Time and Cost-Effective Mutual consent divorce is less time-consuming and less expensive than a contested divorce. It saves both parties time, money and may reduce the need for court hearings and lengthy legal procedures. 
  • Less Stressful Compared to Contested Divorce As mentioned earlier, mutual consent divorce can make the divorce process less stressful by reducing conflicts and reducing the need for long legal proceedings. The smoother process, in turn, makes the divorce less traumatic and easier to cope with for both parties. 
  • Allows for Amicable Resolution of Issues Mutual consent divorce allows both parties to settle their legal and financial disputes amicably. This, in turn, can help to preserve the dignity and respect of the parties
    involved, making it an advantageous option.
What happens if one spouse changes his/her mind after the filing of the Mutual Consent Divorce?
  • He/She can voluntarily withdraw his/her consent or
  • He/She does not need to be present at the time of the final hearing of the divorce to record his statement.

     The court will offer additional time before dismissing the application indicating the rationale behind the refusal.

Conclusion:-

Mutual consent divorce is an excellent option for couples seeking to end their marriage amicably. Taking into account the legal, financial, and emotional aspects of mutual consent divorce can help to make the process less stressful, less expensive, and time-consuming. It finally provides a way for both parties to have an amicable resolution of their issues.

Case Laws:

 

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