Whenever the couples decide to end the marriage, the first confusion that usually comes to their mind is not about emotions, it is just about procedure.
People ask:
- “Can we get divorced peacefully?”
- “How long will it take?”
- “Do we have to fight in court?”
- “Is one year separation compulsory?”
- “Can it be done very quickly?”
The Indian law clearly provides a dignified solution for couples who mutually agree to separate, i.e., Mutual Consent Divorce. When it is handled correctly, this procedure avoids allegations, criminal cases, as well as years of litigation.
This article explains what the mutual divorce actually is, how the courts deal with it in real life, as well as what are the steps you should take practically, and not theoretically.
What Mutual Consent Divorce Really Means
A mutual consent divorce is a situation when the husband and wife have come to a mutually agreed position that they do not want to stay married anymore, and go through the divorce process of mutual consent rather than engaging in a court battle.
The law states clearly that any agreement reached must be free and voluntary. In addition, both individuals need to agree to continue to accept the stipulations made during the process leading up to the final court order to grant them the divorce. If, at any point, one of the parties withdraws their consent, the Court cannot compel either party to divorce.
When Does a Marriage Qualify for Mutual Divorce?
The law requires that spouses must have lived separately for at least one year. This does not always mean living in different houses. Courts have repeatedly accepted that couples may live under the same roof due to financial or family reasons but still be considered separated if they are no longer living as husband and wife.
Apart from separation, both parties must genuinely agree to divorce without pressure or fear. Courts carefully check this during hearings. The final requirement is that there should be no real possibility of reconciliation. If the relationship has clearly broken down despite attempts to resolve differences, courts usually support mutual divorce.
Issues That Must Be Decided Before Filing the Case
In practical terms, mutual divorce works only when everything is settled beforehand. Family courts do not want disputes to arise after the divorce is granted.
When applying for a mutual divorce, the couple need to reach a settlement Once the agreement for the settlement has been submitted to the court, it is considered a legally binding contract and any breach of the terms may result in penalties.
How the Mutual Divorce Process Works Step by Step
Step 1: Filing First Motion
Both the spouses can jointly file the First Motion Petition in Family Court.
The petition mostly mentions:
- Marriage details
- Period of separation
- Decision to divorce mutually
- Settlement terms
Both of the parties sign the petition and then appear in the court.
Step 2: Hearing of First Motion
On the hearing date:
- Both spouses appear before the judge
- Statements are recorded
- The judge confirms free consent and settlement
If the judge is satisfied, they accept the petition.
Step 3: Cooling-Off Period (Six Months)
- Generally, the law provides the 6-month waiting period between the first as well as the second motion.
- This was meant to offer the couples the time to reconsider.
- But this waiting period is not at all compulsory in every case.
Step 4: Waiver of 6-Month Period (If Applicable)
If:
- Parties have lived separately for a long time
- All disputes are settled
- There is no chance of reconciliation
Courts may waive the six-month period and allow early divorce.
This has helped many couples avoid unnecessary delay.
Step 5: Second Motion and Final Divorce Decree
In the second motion:
- Court again records statements
- Confirms that consent still exists
- Reviews settlement terms
If everything is in correct order, the court mostly passes the final decree of divorce. The marriage then legally ends on that day.
How Long Does Mutual Divorce Take in Reality?
Under the circumstances of a cooling-off period, a mutual divorce typically takes six to eight months. However, if the cooling-off period is waived, the divorce could be finalised within one to two months depending on the availability of the court. A mutual divorce is significantly shorter than a contested divorce which may take years to complete and is not as stressful as a contested divorce.
Supreme Court Decisions That Changed Mutual Divorce Law
The Supreme Court has had a significant impact on the viability of mutual divorce since its inception. In many instances, the Court has given clear guidance on many issues relating to mutual divorce, most importantly; the Court’s 1978 decision in Attorney General v. P.A. Munjal established that the requirement of six months waiting period isn’t mandatory for those who have been separated for a lengthy period, and their property has been completely divided between them, and where reconciliation is no longer an option for them.
Additionally, the Court made clear that a mutual divorce continues to exist until there exists a final decree of divorce. Each spouse has the right until the conclusion of the proceedings to withdraw or change his/her consent at any time; therefore, there is no possibility of causing a divorce against a spouse’s will. Ultimately, the above-mentioned decisions from the Supreme Court establish that mutual divorce remains the product of the parties’ voluntary consent.
Can Mutual Divorce Be Done Online?
Currently, a mutual divorce cannot be completed entirely on-line. While many courts allow an electronic submission of pleadings and to proceed with limited virtual hearings, most jurisdictions require that all parties attend in person at least once or twice to complete the documenting of their final divorce agreements; however, these rules may differ depending upon the locality where you live. Thus, individuals should expect to attend court in person for at least one or two final hearings.
Why Mutual Divorce Is Often the Best Option
A mutual divorce offers the parties a way to sidestep the formalities of potential criminal complaints, character assassination, and the long and expensive process of litigation. Through the adoption of the mutual divorce, the parties can save on total legal costs, keep their dignity, and even begin living in a more friendly and peaceful manner. In case where there are children, this process will be a step towards forming as well as ensuring a good co-parenting relationship in the future.
Situations Where Mutual Divorce Does Not Work
If one of the spouses withdraws from the agreement, if the issue still persists and that have not been resolved by both parties, or if the court actually determines that consent was obtained by coercion or fraud, then the mutual divorce cannot proceed forward. In those cases, both parties will be required to file for a contested divorce.
What You Should Do Before Taking the Next Step
- Need not rush into filing without the settlement clarity
- Document separation period properly
- Discuss child custody and finances openly
- Consult the family lawyer before the drafting settlement
- Avoid any type of emotional or impulsive decisions
Early legal guidance prevents delays and future disputes.
How We Assist in Mutual Divorce Matters
Our job is to help keep the process as painless, legal and efficient as possible. We assist with drafting settlement agreements, preparing legal documents for filing with the court, submitting all necessary waivers and otherwise advising clients during all hearings and events pertaining to their divorce case so as to ultimately successfully complete their divorce with minimal duration and/or complication.
One can talk to lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.
FAQs
1. Do one year separation is compulsory for the mutual divorce?
Yes, but the separation does not always mean living in the different houses. The courts look at marital conduct and not just the residence.
2. Can the mutual divorce be completed in only one month?
Yes, if at all the court waives the 6-month waiting period.
3. Can one spouse back out after the filing of the mutual divorce?
Yes. The consent can be withdrawn before final decree.
4. Is the alimony compulsory in mutual divorce?
No. It mostly depends on the mutual agreement between the parties.
5. Can we actually remarry immediately after the mutual divorce?
Yes, once the final decree is passed as well as the appeal period expires.
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