File Divorce By Mutual Consent

• Criteria for divorce by mutual consent
• Procedure of divorce filing
• Important legislations
• Divorce by NRI
• Requirement/condition for divorce

Divorce by Mutual Consent is considered to be a straightforward way of dissolving the marriage. It releases the party from the hassles of contesting the divorce causing pain to both parties in addition to saving time and money for both parties. The parties here mutually agree to dissolve the marriage and file for a decree from the court. But it is important the right flowing emotions between the husband and wife must not blind the logic and no decision must be taken in without thinking twice about the dire consequences.

• Section 13B of the Hindu Marriage Act, 1955 (applicable to all Hindus, Jains, Sikhs) mandates a period of separation of 1 year ,
• Section 28 of the Special Marriage Act, 1954 ( applicable to all marriages between parties belonging to different religions, castes, NRI’s etc) mandates a period of separation of more than one year,
• Section 10 A of the Indian Divorce Act for Christian Couples mandates a period of separation of two years.

• Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved
• On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

Divorcee between the parties where either/both the parties are not hindu is governed under Section 28 of the Special Marriage Act, 1954. The Provisions of Divorcee under Special Marriage Act, 1954 are pari materia to the above section.

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• Both the parties have been living separately for a period of at least one year (living separately has no connection with respect to living under safe roof)
• Both the parties have not been able to live together, and
• Both the parties have mutually agreed to the conclusion that marriage should be dissolve

• Both husband and wife have to reach a consensus in terms of mutual divorce.
• As per the discussion between the parties, a Divorcee Petition is carefully drafted by a Legal Attorney for Mutual Consent under Section 13B of the Hindu Marriage Act or Section 10A of the Indian Divorce Act or Section 28 of the Special Marriage Act, as per its applicability.
• After completion of Drafting and other necessary formalities, Divorce Petition to be filed in the appropriate Court having jurisdiction.
• Both the parties need to be present in the court for appearance as well as for recording statements as required after which the First Motion will be passed.
• Where any party is unable to appear in person for recording statement due to any relevant reason, they can proceed through a Power of Attorney(POA) by authorizing someone from close family to appear on his behalf (in case of NRI or other reason)
• The law provides the provision to provide a cooling period to the parties of a minimum 6 months which may extend up to 18 months with an aim to give them time to rethink and reconsider their decision. However, now vide the order of Hon’ble Supreme Court the said cooling period has been waivedoff/made it optional.
• Afterward this The Second Motion is set up.
• During the cooling period, before moving the second motion, the parties do have liberty to withdraw their consent for divorce.
• If on the Second motion statements are recorded again and if court thinks/appears that the parties have been unable to resolve their differences, the Court will grant the Decree for Divorce.
• If the court consider that/or on request of parties that there is a scope of any harmony/compromise between the parties, the court may set up another motion to record the statement of the parties.
• If Divorce Decree has been passed with consent of both the parties then they can file an appeal in the higher court.

• where the marriage was solemnized between the parties, or
• where both wife and husband last resided together,or
• where the wife is residing presently at the time of filing of the Divorce Petition, or
• Where the husband is residing presently at the time of filing of the Divorce Petition.

• I got married 7 months before and want to file divorce. Is it possible?

  No, one can file divorce only after completion of 1 year of marriage on the basis of grounds mentioned in Section 13 of Hindu Marriage act.

• What can I do if I am married for 3 months and my husband physically assaults me?

  You can file divorce only after completion of 1 year but you can approach local family court for annulment of marriage on basis of cruelty.

• I lives in Canada and cannot come to india for filing divorce. So can I apply for divorce online?

  No, there is no provision to file divorce through online medium. Although you can execute POA in favour of your family member or attorney who is present in India.

• My husband deserted me 3 years ago and has never come back. Can I file divorce?

  Yes, you can file divorce on basis of desertion and if you have not heard about person from last 7 years.

• How much time it takes to get divorce in case of mutual consent?

  In case of contested divorce, it taken long time generally 3-5 years but in case of uncontested one, it takes around 7-8 months.

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  Lawyerinc is a complete blend of professionals from across the globe. In –house team of lawyers and attorneys, CA, CS. All professional work together in Lawyerinc, providing you end to end solution. It guarantees delivery in the shortest and most reasonable rate in India. It enjoys a global presence.

• Why to get court marriage through lawyerinc?

  Lawyerinc is a complete blend of professionals from across the globe. In –house team of lawyers and attorneys, CA, CS. All professional work together in Lawyerinc, providing you end to end solution. It guarantees delivery in the shortest and most reasonable rate in India. It enjoys a global presence