Mutual consent means both the spouses agree to peacefully part ways. It is the simplest way of obtaining divorce.
Important Considerations for Mutual Divorce
There are two main considerations:
1. Maintenance or Alimony: It is the financial support provided by one spouse to another. Generally, in the Indian scenario, it is the husband who provides alimony to the wife. There is no minimum or maximum limit for alimony set by the law.While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.
2. Custody of children: Custody can be exclusive or joint depending on the understanding of the husband and the wife.The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parenspatriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access and child support can be changed in case the circumstances are altered, or in the best interest of the child.
Grounds of Divorce by Mutual Consent
1. The parties have been living separately for a period of 1 year or more.
2 The parties are unable to live together.
3. There is a mutual consent between the parties to separate.
A petition in such cases can be filed only after 1 year from the date of marriage.
Procedure of a Mutual Petition
1. The parties must file the petition together which is in a form of affidavit.
2. They shall make sure that they have not been living together for at least a year.
3. The couple must furnish reasonable grounds of their inability to live together.
4. The court after admitting the petition adjourns he matter for at least 6 months which may be extended to 18 months. In this period the couple is expected to live together.
5. After this cooling- off period if the couple still wants to divorce, the court shall grant them with the same.
Note: Six months period is not mandatory and can be waived off by the court.
Where to File a Petition for Mutual Consent Divorce
The parties must approach the District court where:
1. The couple last lived together.
2. The marriage was solemnized.
3. Where the wife presently resides.
Withdrawal from Mutual Consent Petition
During the cooling-off period, any of the two parties have full right to withdraw their consent to the divorce petition. The procedure for the same is filing an application in the court stating the reasons for the same.
In such a case the other party has no right but to move to file for divorce by normal procedure of litigation.
Documents Required
- Address proofs of both the parties
- Present earnings certificates
- Marriage Certificate
- Photographs of the marriage
- Income Tax Statements
- Evidence that they have been living separately for more than a year.
- Evidence of failed attempts of reconciliation
Advantages of Taking a Divorce by Mutual Consent
- Avoids unnecessary quarrels
- Saves time
- Saves money
Different Set of Laws for Divorce in Different Religions
1. Hindus including Jains, Sikhs and Buddhists- Hindu Marriage Act, 1955
2. Christians- Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872. The procedure is same as Hindu Law.
3. Muslims- Personal laws, Dissolution of Marriage Act, 1939 and Muslim Women (Protection of Rights on Divorce) Act, 1986.
Mutual divorce under Muslim law is an extra-judicial divorce. There are tow kinds of it
i.Khula- Khulais an agreement between the husband and the wife for dissolution of marriage in lieu of compensation that is paid by the wife to her husband. It is an irrevocable divorce.
ii.Mubarat-In this a proposal is made by either of the spouses. On acceptance, the divorce becomes irrevocable.
4. Parsis- The Parsi Marriage & Divorce Act, 1936.
5. Others- There is a secular law called the Special Marriage Act, 1954.
To apply for DIVORCE BY MUTUAL CONSENT click here.
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