Going through divorces can be incredibly challenging, especially when marriages take a toll on one’s physical and mental well-being, making the decision even more difficult.
In India, the concept of mutual consent divorce has become more accepted, with many people now recognizing the harsh realities of their relationships and opting for healthier choices.
Under Section 13B of the Hindu Marriage Act, 1955, certain conditions must be met for a mutual consent divorce, ensuring a smooth legal process while prioritizing the interests of both parties.
1: The couple can no longer live together.
2: They have been living separately for at least a year.
3: Both parties agree that the marriage has irretrievably broken down and should be terminated.
Only proof of cruelty (both physical and mental), desertion (unjustified separation for two years), infidelity, illness, etc.., can establish a challenged separation.
Divorce By Way of Mutual Consent
Navigating a divorce can be challenging, but when both parties mutually agree on separation, it simplifies the process significantly. Under the Hindu Marriage Act, 1955, divorce by mutual consent is a legally recognized option governed by Section 13B, allowing a spouse to seek separation without the complexities of a contested divorce. The first step involves settling terms like alimony, maintenance, custody, visitation of children, and other essential agreements to ensure compliance with the law.
A joint petition under Section 13B(1), also called the first motion petition, must be applied in the concerned court, where both individuals provide their statement. If everything meets legal conditions, the court records the proceedings and grants the divorce. In cases where a contested divorce petition has already been filed, it must be withdrawn before proceeding with mutual consent.
Often, mediation, conciliation, or court intervention leads to a settlement, making the process less stressful. Seeking guidance from the best divorce lawyer in Delhi ensures that the procedure is legally sound, acceptable, and conducted smoothly. A skilled attorney or advocate can help streamline the legal proceedings, ensuring client satisfaction at every stage.
What Is a Mutual Consent Divorce?
1: A mutual consent divorce happens when both spouses mutually decide on the terms of their separation, covering aspects like alimony, child custody, and property division.
2: As per Section 13B of the Hindu Marriage Act, a mutual consent divorce can be approved if the couple has been living separately for at least one year and agrees to end the marriage peacefully.
3: The Special Marriage Act also provides similar provisions for couples seeking divorce through mutual consent.
Why You Need the Best Divorce Lawyer for Mutual Consent Divorce
Although mutual consent divorces are less complex than contested ones, they still involve several legal procedures. Having the best divorce lawyer in Delhi ensures:
Even though mutual consent divorces are less complicated than contested cases, navigating the legal procedures without the best divorce lawyer in Delhi can still be challenging. A skilled lawyer ensures expert negotiation of critical terms like child custody, alimony, and division of assets, preventing unnecessary delays.
Proper efficient documentation and correctly filed legal paperwork reduce court delays, leading to a quick resolution. With minimal court appearances, a smooth, timely process is achievable, while legal safeguards ensure all terms remain legally binding, helping protect clients from future disputes.
Understanding the Cooling off Period
Under the Hindu Marriage Act, 1955, when a divorce by mutual consent is initiated through a petition under Section 13B(1), the law imposes a cooling off period of 6 months before the second motion petition can be filed under Section 13B(2).
This statutory gap is mandatory, giving spouses time for reconciliation and to reconsider their decision, preventing separations made in the spur of the moment. However, in certain exceptional circumstances, the Hon’ble Supreme Court in Amardeep Singh v. Harveen Kaur ruled that the waiting period can be waived to avoid unnecessary litigation and hassles if the Family Court finds that the settlement is completed and no possibility of reunion exists.** Directions** from the Honourable Supreme Court have made it permissible to condone this prescribed period, reducing the hardships of those stuck in a sour battle, ensuring a smoother and quicker resolution.
The factors which will warrant the waiving of the waiting period are
When parties have already completed the statutory period of one year of separation under Section 13B(1) and the six months required by Section 13B(2) before the first motion, they may seek a waiver of the waiting period to avoid unnecessary delays. If all efforts at mediation and conciliation—including those mandated under Order XXXIIA Rule 3 CPC, Section 23(2) of the Act, and Section 9 of the Family Courts Act—have failed, and there is no likelihood of reconciliation despite further effort, the court may consider granting relief.
When differences such as alimony, custody of the child, and other pending issues are genuinely settled, extending the waiting period would only prolong the agony of the couple. In such cases, the court may provide a clear direction in favor of an expedited divorce to ensure a smooth and just resolution.
Legal Grounds for Statutory Gap Waiver
The panel further decided that the Court should consider the following questions:
1: How long have they been married?
2: How long is the litigation pending?
3: How long have they been apart?
4: Are there any other procedures between the parties?
5: Did the parties attend mediation or conciliation?
6: Have the parties reached a true settlement that addresses alimony, child custody, and any other pending matters between them?
The bench also noted that in Amit Kumar v. Suman Beniwal (2021), a two-judge bench held that in addition to the factors mentioned in Amardeep Singh, the Court should also determine whether the parties have freely, on their own accord, and without any coercion or pressure arrived at a genuine settlement.
How to File for a Mutual Consent Divorce
First Motion: The divorce process begins with a joint petition filed by both spouses, outlining key details such as the date of marriage, reasons for separation, and mutually agreed terms on child custody, alimony, and asset division.
Cooling-Off Period: After the initial hearing, a mandatory six-month “cooling-off” period is provided for the couple to reconsider their decision. In specific cases, the Supreme Court may grant an exemption for a faster divorce, especially with the guidance of a knowledgeable lawyer.
Second Motion: If the six-month waiting period is not waived, the court proceeds with the finalization of the divorce. A competent lawyer ensures that all formalities are handled smoothly.
Addressing Future Disputes: To prevent complications later, an experienced lawyer drafts clear settlement agreements covering aspects like post-divorce financial arrangements and possible custody modifications.
Benefits of Hiring a Mutual Consent Divorce Lawyer
- Seeking guidance from experts, such as a mutual consent divorce lawyer, is essential to smoothly navigate the process.
- Key steps involved are:
- Both parties sign a joint agreement.
- The first motion statement is recorded and signed in the presence of the court.
- A six-month cooling-off period is provided for reconsideration.
- If both parties still agree to divorce, a second and final hearing is conducted.
Our Mutual Consent Divorce Assistance in Delhi
Expert Consultation and Legal Guidance: Our initial consultation ensures that you feel supported while receiving detailed advice on mutual divorce in India, helping you understand your legal rights and the implications of your decisions.
Accurate Filing and Documentation: Filing a mutual consent divorce petition requires precision. Our team ensures that all documents are prepared and submitted correctly, avoiding any delays and ensuring a seamless process.
Strong Representation in Court: While mutual divorces are usually amicable, having a skilled lawyer is essential. We provide dedicated legal support, standing by you during court proceedings to safeguard your interests and ensure a fair resolution.
Opulence Legal, the leading divorce law firm in Delhi, provides expert legal solutions for both mutual and contested divorce cases, as well as child custody matters. As the Best Mutual Consent Divorce Lawyer in Delhi, our personalized and experienced approach ensures quick and effective resolutions, allowing clients to move forward and rebuild their lives promptly.