Mutual Divorce means when both the parties agree to separate amicably. As per section 13B of the Hindu marriage Act, 1956, conditions include that husband and wife should be living separately for a period of 1 year or longer. It is important for both the parties to agree for mutual dicorce and they should mutually agree that the marriage has completely collapsed now.
A divorce with mutual consent is a relatively swift process in court when compare to the contest. However, divorce may not be granted instantly on the filing of the petition. After filing for divorce, the court may ask the parties to reconcile their differences over six months and make the marriage work. Depending on the circumstances , this period may be reduced by moving an application.
Provision for mutual Divorce
Filing a Petition
Our expert team of lawyers, will assist on the best possibility before filing the Divorce petition. We help our client, by negotiating with the other party and advising the best thing possible. If everything is settled between the parties, then we prepare a settlement agreement and get it signed by the both parties and file a Divorce Petition in the court. That is called filing of first motion in the court.
Filing of Second Motion Petition
After completing the process of first motion, a second motion petition is being filed. After six months of filing the first motion, we can file a second motion. However it depends on the parties, i.e. if they want to file a second motion before the period of Months then we have to move an application before court, and it’s totally discretion of court to allow it.
After hearing of the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for divorce have been met, the couple is granted a mutual divorce decree.
- What are the advantages of divorce by mutual consent?
Divorce by mutual consent saves time, money and energy for both the parties.
- When can divorce by mutual consent be filed?
When both the parties are ready to dissolve their marriage and also they are living for more than a year, then they can dissolve their marriage through mutual divorce.
- Where is the Petition for divorce by mutual consent filed?
In the family court of the City/District where both the parties cohabited together (i.e. Matrimonial Home of Wife) or where at present wife is staying.
- What happens after filing for the Divorce Petition?
After filing of the petition and recording the statement of both the parties, the court generally adjourned the matter for a period of six months.
- Can either of the parties withdraw its mutual consent petition after filing in the court?
Yes, any of the parties can withdraw its petition and tine after filing of the first motion.
- What happens after a six months period if there is no application of withdrawal?
Then parties through their lawyer will file a second motion petition incurt, and after recording of the statement of both the parties, Divorce shall be granted.
- Can the spouse consent for remarriage without getting divorce from the existing partner?
Remarriage without getting Divorce is a punishable offence with seven years imprisonment.
- When can parties be eligible for remarriage?
After the expiry of three months (90 days) from the date of divorce decree, if no notice appeal is received by the person, then parties are eligible to remarry.
- Is the statutory cooling off period of six months mandatory?
The period of six months mentioned under section 13B of the Act is not mandatory but is directory. However, this period can be reduced by filing an application, but it will open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
- How can NRIs file for mutual Divorce?
NRIs who got married in India can file their Divorce in India. The couple can also file for Divorce in the country where they are residing, but the decree passed by the foreign court should not be inconclusive of section 13 of CPC, 1908. Hence, it is subject to discretion of the Indian courts, if challenged otherwise.