How To File Mutual Divorce? Mutual Divorce Process

The Meaning And The Explanation Of Mutual Consent Divorce

A Mutual Consent Divorce is when both the husband and wife want to terminate the marriage. It is a decision taken by mutual consent, and hence, the mutual divorce process is a lot smoother than divorce by other means. As per the Hindu Marriage Act, 1955, both spouses have the right to file for the dissolution of their marriage by a decree of divorce on more than one ground specifically enumerated in Section 13. Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent.

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What Are The Conditions To file For A Mutual Divorce

As per Section 13B of the Hindu Marriage Act, 1955, the following conditions must be met to file for a mutual divorce.

(i) Both spouses must live separately for at least one year.

(ii) Both spouses feel that they cannot live together.

(iii) Both the husband and wife mutually agree that their marriage has collapsed

(iv) Both parties agree to comply and file jointly for a mutual divorce without any undue influence

The Documents Required for initiation of Mutual Divorce Process:

Marriage Certificate
Address Proof – Husband and Wife.
Four Photographs of Marriage.
Income tax Statement of last 3 years.
Details of profession and Income (Salary slips, appointment letter)
Details of Property and Asset owned
Information about family (husband and wife)
Evidence of Staying separately for an year

Step 1: Filing a Divorce Petition

A mutual divorce process is commenced with the filing of a divorce petition, which may be filed at any of the following places;

1.    Court where the couple last lived

2.    Court where the couple’s marriage was solemnized

3.    The court in the area where the wife currently resides

The divorce petition must be filed jointly by the concerned parties, and the notice is served to the family court by both parties. The grounds for divorce is that the spouses feel they cannot live with each other anymore, and hence, have agreed mutually to dissolve their marriage. Another common ground used to get a mutual divorce is that due to unavoidable differences, the couple has been living separately for over a year. The joint petition must be signed by both parties involved.

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Step 2: Court hearing and inspection

After this, both the parties appear in the family court along with their lawyers. The court after going over the petition and all the supporting documents presented as proof before the court. It can also try to bring reconciliation, and if this is not possible, the mutual divorce process continues.
 

Step 3: Record Statement on Oath

the court passes an order, after duly scrutinizing their petition, to record the party’s statements on oath.
 

Step 4: First Motion

After recording their statements, the first motion is passed by the honourable court. Following this, the couple has to wait for 6 months before filing the second motion. However, the second motion must be submitted at least before 18 months after passing the first motion.
 

Step 5: Second Motion and Final Hearing

Once they decide to file the second motion, they can go ahead with the final hearing before the court. The final hearing includes both parties stating their case, and the court recording their statements on oath in the family court. Also, recently, the SC stated in their finding that the 6-months interim period can be avoided if the court wishes it to be. Courts do so if they feel both parties are sure about the divorce, and also if there are no issues related to alimony, child custody, or property.

 

Step 6: Divorce Decree

Once the couple state that they do not have any differences in matters concerning alimony, child custody, or sharing of property, the mutual divorce process reaches the final stage. Therefore, the couple must reach an agreement for the court to take a final decision. With the court’s satisfaction, it passes a decree of divorce, which declares that the marriage is dissolved, and this makes the divorce final.

Duration In Mutual Divorce:

Under Section 13B, when a couple files for divorce with mutual consent, they first have to establish a 12-month separation period, which is then followed by a "cooling off" period of six months. However, the Supreme Court had in 2020 ruled that on case to case basis, this period can be waived. 

How is alimony calculated?

1. There is no fixed formula or hard and fast rule for the calculation of alimony that the husband needs to provide to his wife. The alimony can be provided as a periodical or monthly payment, or as a one-time payment in the form of a lump-sum amount.

If the alimony is being paid on a monthly basis, the Supreme Court of India has set 25% of the husband’s net monthly salary as the benchmark amount that should be granted to the wife. There is no such benchmark for one-time settlement, but usually, the amount ranges between 1/5th to 1/3rd of the husband’s net worth.

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Who is eligible to get alimony?

Under Section 25 of the Hindu Marriage Act, permanent alimony is provided by the court to the wife or even to the husband for her or his support and maintenance. In case the wife is a working woman, but there is a considerable difference between her and her husband’s net earnings, she will still be awarded alimony to help her maintain the same standard of living as her husband.

If the wife is not earning, the court will consider her age, educational qualification and ability to earn to decide the amount of alimony. If the husband is disabled and is unable to earn and the wife is earning, then the court grants alimony to the husband.