We at LegalKart have been sharing details on teething legal issues that are faced by people in their lives. One of the most important one amongst them is the family issues, especially when a marriage goes bad – to an extent that it is not reconcilable at all. In the previous post, we shared the basic details of divorce and general process of filing a divorce in family court for dissolving a troubled marriage.
Mostly, the process of filing a divorce and completing the process to get a divorce decree granted by the family court, is perceived to be an extremely stressful and time taking process. However, to anybody’s surprise, if a husband and wife experiencing a troubled marriage decide to amicably end the marriage, the process could become smoother and a little less stressful. Let us understand more.
In simple word, a divorce petition filed by individual(s) – husband and wife – based on mutual consent is called as the Mutual Consent divorce.
Some of the important points to note are:
- Mutual Consent divorce is covered under section 13B of the Hindu Marriage Act 1955
- The husband and wife must be living separately for one year
- The differences of opinion between husband and wife in a troubled marriage have gone beyond reconciliation
- Husband and wife agree that their marriage is not working out
- Husband and wife agree mutually to dissolve the marriage amicably
- Both of them also agree on the terms and conditions of the divorce:
- alimony amount
- custody of children, if any
- division of property and assets, etc.
- Both of them agree to file the divorce jointly and comply to the conditions laid thereof
- Laws that govern the divorce process in India are:
- The Hindu Marriage Act, 1955 govern religions including Hindus, Jains, Buddhist and Sikhs
- The Indian Christian Marriage Act, 1872 governs the Christian religion
- The Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 1986 govern the Muslim religion
- The Parsi Marriage / Divorce Act, 1936 governs the Parsi religion
- The Special Marriage Act, 1954 governs inter-religion or inter-caste marriages
Procedure for filing mutual consent Divorce in India
While the mutual consent factor in a troubled marriage can be a little comforting for both parties, the process of filing a mutual consent divorce in India can be fairly complex. In our opinion, both the husband and wife must know the process that they will experience when they file a divorce. The steps are elaborated as below:
- The first and the foremost step is to employ a qualified and competent divorce lawyer for executing the entire process – petition drafting, petition filing, representing the case in court of law on hearing dates, coordination with both parties, etc.
- This is followed by petition document drafting which includes the reasons of filing for a divorce by spouses including the mutual consent and related terms and conditions of the divorce – alimony amount, children’s custody, division of assets, etc. It is important to note that the petition of mutual consent should be filed jointly by both parties and they should be living separately for more than one year.
- The third step in the process is to file the mutual consent divorce petition before a family court. The petition can be filed in family court of the area where the parties have last lived or the area where the marriage was solemnized, or where the wife is currently residing. Along with the petition important documents are also required to be submitted to the family court – identity proofs, details of assets, income tax returns, marriage certificate, photographs, etc.
- This is followed by the scrutiny of documents by the family court. Once the petition and supporting documents are scrutinised satisfactorily by the family court, it decides to allow the case to proceed and gives a date for first hearing.
- In the first hearing, court hears arguments and directs both parties to go on a mandatory cooling off period of six months duration. The idea of this is to give a chance to both parties to reconcile their differences so that marriage can be saved. This is also often called as passing of the first motion.
- Once the cooling off period is completed, based on the unfavourable results of the same the family court allows both parties to move forward with the mutual consent divorce process.
- Hereafter, the court assigns a next date of hearing for recording the statement of oath of both parties by appearing in the court along with their lawyer(s).
- The couples getting divorced on mutual consent move for filing the second motion in the family court. The maximum period allowed to file the second motion by rule of law is eighteen months from the first motion. The second motion is also referred to as the final hearing of the case.
- During the final hearing, statements of both parties are recorded by the family court, divorce decree is granted and marriage is dissolved.
In a nutshell
Living through a troubled marital relationship is difficult and ending a disturbed marriage can be a relieving but an unpleasant experience. The process is fairly complex and it is prudent to consult a professional divorce lawyer. Afterall, proper hand holding and guidance in the process can reduce the stress significantly.
If you are facing a difficult married life, LegalKart is here to connect you with a qualified and competent divorce lawyer right away.