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 appropriate court, without putting forth any allegations against each other.
Conditions 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 It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition.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.
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.
Most Important Points to Remember While Divorce
- Child Custody – Which partner will get the child custody after divorce
- Alumni/Maintenance – If one of the partners is unable to meet his daily expenses then other needs to pay him 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)
Provision’s in the Law for Mutually Consented Divorce
As we know there are different acts for marriage registration, the same applies for divorce as well, the law has different provisions as per the marriage acts which are :
- Section 13B of the Hindu Marriage Act 1955(Period of separation = 1-year minimum)
- Section 28 of the Special Marriage Act, 1954
- Section 10A of the Divorce Act, 1869 (Period of separation = 2-year minimum)
- Section 32B for Parsi Marriage Act 1936
- And under the sections of Christian and Muslim Marriage Act.
What are the steps involved in filing a Divorce
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.
2. Issuing Summons
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.
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.
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. 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).
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.
6. Final Decree
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 courts.