by Advocate Ankur Goel B.E., LLB
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WHAT IS MUTUAL DIVORCE / MUTUAL CONSENT DIVORCE ?
Divorce is quite big step which is equally important and far reaching implications like marriage and career of one’s life. It is also a difficult and painful process for many. Hence if it can be possible then it is advised to try to reduce this life reaching pain and separate the way for new life by mutual understanding. If both husband and wife solve issues amicably and decide to part ways without the fighting then this mutual understanding is called as Mutual Consent. They can file together for Divorce and such divorce is called “Mutual Consent Divorce” or in short “Mutual Divorce”.
It is different from Normal or contested Divorce. Normally either husband or wife wants divorce and other spouse does not want to give divorce or does not agree on certain demands. They both fight in courts over the years with hurting each other and hurting themselves.
However now the people are more mature. both husband and wife agree to give divorce without causing pain to each other and this is Mutual Divorce which is completely different from Contested Divorce. So basically Mutual Divorce is simpler, faster, cheaper and it cost less pain to both husband and wife and also their families. In case of mutual divorce basically all the issues related to the alimony, maintenance, child custody if there is any child, the properties are decided by both the husband and wife sitting together. They can take the lawyer or lawyers help for that. All above things are decided by court in Contested Divorces if both husband and wife do not agree themselves. These conditions are written down and submitted to court in Joint petition in Mutual Divorce.
As per statistics; 64% couples were united by Mediation in Court. So its better if you take professional counselling before filing Divorce until and unless you are thinking for free mediation by court.
Lets discuss the Mutual Divorce in detail…
IS THERE ANY MANDATORY CONDITIONS FOR MUTUAL DIVORCE ?
The Mutual divorce can be filed anytime but ONLY after minimum 1 year of marriage.
3 conditions required to be fulfilled are:
- Husband and wife should be living separately for a period of one year or more.
- During this period of separation, they have not been able to live as husband and wife.
- They have mutually agreed to obtain divorce.
WHERE/IN WHICH COURT TO FILE (COURT JURISDICTION) ?
A Mutual Divorce Petition can be filed in court which has jurisdiction over any 1 of the 3 conditions :
o Where the marriage took place.
o Where the husband and wife last resided together.
o Where the wife is currently residing.
Thus Wife has option to file it where she is living for her convenience.
WHAT ARE STEPS FOR MUTUAL DIVORCE ?
- Consultation(s) with the lawyer(s).
- Drafting of the Petition of Mutual Divorce.
- 1st motion* filing in court.
- 2nd motion* filing in court after cooling-off period (Max 18 months).
- Decree of Mutual Consent Divorce
* Both Husband and Wife are required to be present in Court
The application for mutual Divorce is called Petition. It will mention all details of marriage, Separation, Divorce reasons, details of assets, maintenance, alimony, child custody, prayer and affidavits. This is most important document for Mutual Divorce and both husband and wife have to sign it and submit in court.
WHAT IS COMPLETE PROCEDURE FOR MUTUAL DIVORCE ?
1. If Mandatory conditions of minimum 1 year separation and court Jurisdiction are confirming then Mutual Divorce can be filed.
2. Petition of Mutual Consent Divorce is prepared with the help of one or two separate lawyers along with Alimony, Maintenance, Assets, Properties, Liabilities and child custody clauses clearly defined.
3. The Joint Petition is filed in court by both Husband and Wife and recorded.
4. After the 1st Motion is filed, Court will give minimum 6 months and maximum 18 months cooling-off period for reconciliation to reconsider the decision of Divorce with cool mind.
5. If any of husband or wife or both requires cooling-off period to be waived then application for such situation is made to court and as per court discretion the cooling-off period can be waived based on case requirement.
6. If any of party withdraw the consent then Mutual Divorce is not granted.
7. If none of parties withdraws the consent till cooling-off period is over or after cooling-off period is waived then on 2nd motion both husband and wife reconfirms their wish for divorce together in court. Based on consent the Court grants the Mutual Divorce and Divorce Decree is awarded.
WHAT IS 1ST AND 2ND MOTION ?
1st motion is the filing of Mutual Divorce Petition in court by both husband and wife together and appearing before the Judge to confirm the filing of Mutual Divorce and Jurisdiction. This 1st appearance and intention for Mutual Divorce in court is called 1st motion.
2nd motion is the confirmation of Mutual Divorce after cooling-off period by both husband and wife if any party already not withdrawn their consent. Any of husband or wife can choose for not giving the confirmation on 2nd motion. This 2nd motion is final confirmation for ending the Marriage and Court grants the Divorce decree.
WHAT IS COOLING-OFF PERIOD ?
It is 6 months time given by court which is between 1st motion and 2nd motion.
This 6 month cooling-off period as per Marriage Act is given intentionally to parties to think again on the decision of divorce to save the marriage. This time is given to reconfirm the decision of divorce. If the parties still want to continue on divorce then on 2nd motion the Court grants the divorce. The cooling-off period also helps if divorces are filed based on some reasons (Monetary, misunderstanding, miscommunication, childlessness etc) which might sort out before 2nd motion.
The cooling-off period can be waived by Court for a appropriate reason like any party is going out of India etc and it depends on the grounds and discretion of Court.
WHAT ARE DOCUMENTS REQUIRED ?
The Documents required differ a little on state to state and hence consult your lawyer for the same..
- ID and Address proof of both husband and wife
- Marriage Certificate or Marriage Invitation Card
- Four passport size photographs of the marriage of husband and wife.
- Evidence of spouses are living separately for more than a year.
- Evidence of failed attempts of reconciliation, if any.
- Income tax returns (3 years) of both Husband and Wife.
- Details of present income
- The details of the assets, properties and liabilities
HOW MANY APPEARANCES IN COURT ?
Both husband and wife have to appear in court for their consent on following :
- 1st motion filing in court.
- 2nd motion filing in court.
But if any of them is not able to appear in court for suitable reason like out of country or medical reason then lawyer or family member can appear on their behalf by power of attorney in 1st motion. However for 2nd motion it is mandatory to both husband and wife to be present in court to give and confirm their consent since on this ate marriage will be dissolved and Divorce Degree will be granted.
HOW MUCH TIME IT TAKES ?
The minimum time for Mutual Divorce is 1 month.
The maximum time for Mutual Divorce is 18 months.
Mutual Divorce can be granted within 1 to 7 months based on case and situations in hand at court discretion. If anyone or both can show urgent situation then request for waiving cooling period can be made. In one of case the couple after 1 year of own trying of saving marriage went for counselling for 7 months which failed so counselling was counted as cooling-off period.
However most divorces are granted in 6 months if not withdrawn and not requested for waiver of cooling-off period.
HOW MANY LAWYERS – 1 or 2 ?
Both husband and wife can have only a single lawyer for both of them or they can even select different lawyers for themselves.
Sometimes both the parties feel safe to have their own lawyers. However it is also perfectly fine with a single lawyer. Many divorces happened successfully with single lawyer and there is also no issues if there are 2 lawyers. It is important that your lawyer have to protect your interest and sometimes it will be not possible by single lawyer.
Note – I advice it is better to have 2 separate lawyers so there is no place of confusion, mistrust. If you don’t want 2 lawyers for full case then also you can ask a lawyer help for consultation to verify Mutual Petition before it is submitted in Court.
HOW TO SOLVE ALIMONY AND MAINTAINANCE ?
Since the Mutual Divorce is filed by husband and wife together as per mutual understanding hence they have to agree on Alimony and Maintenance together. This is the only difficult part where the maximum disagreement and fight happen between husband and wife. Any of husband or wife can seek alimony and maintenance or waive off as per their mutual agreement.
The question of Alimony and Maintenance is decided on basis of income of both husband and wife, their employment and income, their age and health, their Social status, education and maintenance of child (if any). This is the most important and tricky part of the petition which has to be solved by both husband and wife and their lawyer(s). I have even filed cases of NIL alimony and NIL maintenance and even seen alimony cases to the tune of loan.
WHO GETS CHILD CUSTODY ?
Children create emotional issues and when emotions run high then things can go in any direction. Since the Mutual Divorce is filed by husband and wife together as per mutual understanding hence they have to agree together on Child custody. It is second difficult issue but good thing is that child (if any) suffer least in Mutual Divorce.
The question of child custody is decided on basis of age of child, interests, wish and the husband or wife ability to raise the child. There is also option of joint custody.
WHAT HAPPENS TO ASSETS, PROPERTIES AND LIABILITIES ?
Since the Mutual Divorce is filed by husband and wife together as per mutual understanding hence they have to agree on all the assets, properties and liabilities by sitting and deciding together. This is important because they can only create issues after divorce between husband and wife.
If any property is in joint name then it will create issues while selling or making any changes if joint name is not removed. Similarly a joint loan on both husband and wife also have to be corrected since Banks will insist on this very clearly. If vehicle on name of husband involves in accident by wife then husband will be involved in case and vice-versa.
The question of Assets, Properties and Liabilities is decided on basis of contribution of payment by both husband and wife or mutual understanding.
CAN WE/ANY WITHDRAW CONSENT ?
Yes, any one of husband or wife can withdraw the consent anytime within cooling-off period before the 2nd motion or refuse to confirm consent on 2nd motion. This happens in many cases. The most important and only criteria for Mutual Divorce is that both parties agreed for it and hence any party can disagree before the 2nd motion and withdraw consent. The court given 6 months cooling period for the same reason for the parties to give timely thought with cool mind before breaking marriage.
If anyone withdraw the consent then other party has only option to go for Contested Divorce. The normal/Contested divorce is lengthy and difficult process. It can be granted only on certain specified grounds like cruelty / Adultery / Desertion of min 2 years / voluntary sexual inter-course with another person / unsound mind / Impotency / Conversion of religion / Venereal diseases/ Renouncing the world / Presumed dead.
Hence it is important to have proper petition to be prepared for protection if other party has some plans for harassment.
ANY PRECAUTIONS TO TAKE ?
It is definitely good but it is double edge sword and if not used properly then it have more power to cause irrecoverable and remediless damage. This has to be used properly when there are really issues between both husband and wife. It is very important to sit with your lawyer(s) and then decide on terms. The Mutual Petition should have some open options available for protection for any eventuality. The Mutual Petition submitted in court should be having some intelligent safeguards in place.
Mutual Divorce is final and binding and thus cannot be challenged in any court. It can be challenged only if the consent to mutual divorce was obtained by force, fraud, coercion or undue influence which is herculean task to prove and require solid evidence.
Do NOT try to attempt this under pressure or think this as shortcut escape. There are some clients who chose not to follow my advice and burnt not only their fingers but their hands also and then they came running back for relief which is impossible.
CAN WE WITHDRAW 498A CASES OR WHAT HAPPENS TO THEM ?
Yes, it is very much possible to convert Contested Divorce to Mutual Divorce. Infact many Divorce cases gets converted to Mutual Divorce over the course of time. It is very important to mention all those details in Petition and when the cases will be withdrawn. In Many cases, the Contested Divorces are converted to Mutual Divorce after Alimony/Maintenance is agreed. Hence it is important to mention those details in petition so payments can be made in court itself and gets recorded.
It is not safe and advisable to pay huge amount of money by not mentioning in petition and hiding from court.
WHEN CAN YOU RE-MARRY ?
That is positive to start fresh new after burning fingers once. But you can re-marry only once the Divorce is granted by Court and it becomes final. The Mutual Divorce decree becomes final if no appeal is filed within 90 days. The Mutual Consent decree can be appealed within 90 days so it is safe to wait 90 days to re-marry.
Do NOT re-marry by stamp paper divorce. It is not Divorce by Court and not recognized hence re-marriage will become illegal. It is trick played and you will become prey.
CAN TRANSFER DIVORCE CASE TO ANOTHER CITY ?
Yes, Divorce case/petition can be transferred. Supreme Court can transfer it from one court to another court if there is jurisdiction issue or if there is substantial reason. For this a transfer petition has to be filed with the Supreme Court.
But if you moved to another city after 1st motion and want 2nd motion in your new city then it will be easy, cheaper and better option to travel to city of filing Mutual Divorce case instead of transferring it to new city. It is wise decision since it requires only 1 appearance to confirm and close the Divorce.
HOW NRI’S TAKE MUTUAL DIVORCE ?
If the marriage is solemnized in India then Court has jurisdiction over it. Now a days NRI’s marriage are in limelight due to people marry Indian girls and then return overseas by leaving wives back in India. In these cases, no protection is available to women and only remedy available to them is to take contested ex-parte divorce. The process of Mutual Divorce is same for NRIs as resident Indians but court can grant camera proceedings as exception. Also if the NRI return to India anytime within 18 months then at that time the 2nd motion can be filed.
NRIs can also take divorce in their foreign country if it is recognized by India as per India divorce laws.
If both husband and wife are NRI and marriage is also performed out of India then divorce can NOT be taken by Indian Court.
Hope this helps.
Advocate Ankur Goel 