How to go about Divorce by Mutual Consent?

Sometimes it is the solution. Mutual Consent is the term used when both the parties agree to a peaceful separation. It is a simple way of coming out of the marriage and dissolving it legally. The important pre-requisite here is the mutual consent of the husband and wife. There are two things the husband and wife must come to a mutual agreement about Maintenance or alimony. As per law, there are no maximum or minimum limits to alimony or maintenance. There may be a figure or there may not be one; The second issue is the custody of the children (if there are any). This, too, can be worked out efficiently between the parties. Child custody in mutual consent divorce can be shared, joint or exclusive depending on the understanding of the spouses.

When can such a divorce be filed?

Husband and Wife intending to dissolve the marriage are required to wait for at least 1 year from the date of marriage before they file for divorce. They have to show that they have been living separately for a period of one year or more before the presentation of the petition and during this period of separation, they have not been able to live as husband and wife.

Where to file the petition?

The petition for divorce can be filed in the Family Court of the city/district where the couple lived together for the last time, which was their matrimonial home.

Are there different laws of divorce for different religions in India?

Yes. There are different laws of divorce for different religions in India. Hindus (inclusive of Sikhs, Buddhists, and Jains) are governed by the Hindu Marriage Act, 1955. Christians are governed by the Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872. Muslims are governed by Personal Laws of Divorce and also the Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 1986. Similarly, Zoroastrians are governed by The Parsi Marriage and Divorce Act, 1936. There is also a secular law called the Special Marriage Act, 1954.

What happens in court?

The divorce petition is in the form of an affidavit, which has to be submitted in the family court. After the filing of the petition and recording of statement of both husband and wife, the court will generally adjourn the matter for a period of 6 months. After this period of six months, the couple has to make another appearance in court for making a second motion confirming the mutual consent filed for earlier. It is only after this second motion that a decree of divorce is granted by the court.

Can one party withdraw the mutual consent petition after filing in the court? If so, what happens next and what can the other party do?

When the divorce matter is pending in the court for the period of six months, the partners are fully entitling to withdraw the petition (whether together or separately) by making an application to the court saying that he/she no longer wishes to seek divorce by mutual consent. Here, the court will not grant a decree of divorce. In the case where one party withdraws his/her petition, the other party has no option but to file a formal petition for divorce under the provisions of Section 13 of the Hindu Marriage Act, 1950. In such a situation, a divorce will only be granted on certain specified grounds such as cruelty; desertion; voluntary sexual intercourse with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; leprosy; venereal disease; a spouse having renounced the world or if he/she has been missing for a period of 7 years or more.

Can the spouse consent for remarriage without getting a divorce from the existing partner?

Remarriage without getting a divorce is an offense punishable under the law with a punishment amounting to 7 years of imprisonment.

If nothing from the spouses is heard for a long time, should the decree for divorce be granted?

If there is proof of the absence of spouse without any information to the other spouse about his/her whereabouts for a continuous period of 7 years, a petition may be filed in court in this regard.

When can the divorced persons remarry?

This depends on the nature of the decree. If, after a period of 3 months from the date of the decree, no notice of appeal has been received by the party remarrying someone else.

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