Although it is believed that relationships are created in heaven, these heavenly ties do not always continue forever. Divorce is now seen casually, and individuals utilize it as a first choice, despite the fact that the law intended it to be a last resort. Many times, the partners in a marriage can no longer stand one other and cannot live peacefully together. In such situations, the couple may choose to divorce mutually. Mutual divorce occurs when both husband and wife mutually agree that they can no longer live together and decide to dissolve their marriage.
Essential Conditions of Mutual Divorce
- Parties must be living separately – In order to dissolve a marriage by mutual divorce, the parties must have been living apart for at least one year prior to submitting the divorce petition. Living apart does not imply living in different locations. Living under the same roof as a couple but without sharing the bond of husband and wife qualifies the required requirement of living apart.
- Parties are unable to live together – There are a variety of scenarios in which a couple is unable to live together despite mediation, reconciliation, and numerous efforts. In such a case, the couple can divorce by mutual consent. Following the filing of the petition, the parties are allowed a six-month cooling period, which can be extended to eighteen months. Both parties must ponder and examine their options during this period. If the parties are still unable to live together, the district judge should issue a divorce order.
- Parties have mutually consented to end the marriage– In order to dissolve the marriage by a mutual divorce, both parties must have agreed to do so. The divorce petition is submitted jointly by both parties in the case of mutual divorce. The parties have the right to withdraw the petition at any moment. The petition appears to be withdrawable at the request of one of the parties within six months of the petition’s filing date. When a joint motion is adopted by the parties after the expiry of six months but before the expiration of eighteen months from the date of presentation of the petition for inquiry, the individual right of a party to withdraw the petition seems to be barred.
- Parties must file for divorce jointly and without undue influence, fraud, or corruption– Both parties must have consented willingly and without pressure from the other parties to file for divorce. If neither partner is willing to file for amicable divorce, the party seeking divorce may do so using the grounds specified in Section 13 of the Hindu Marriage Act.
Advantages of Mutual Divorce
- A divorce by mutual consent minimizes needless confrontations, saving both spouses time and money.
- Maintenance and custody of the kid can be readily arranged by the parties amicably before the marriage is dissolved.
- In this divorce, the court legalizes and agrees to all that the couple has talked and chosen.
- Under this, the spouses need not explain the reason for divorce before the court of law.
- It does not lead to any confusion or chaos between the parties regarding how the assets and liabilities will be divided between the couple.
- If the divorce takes place amicably without any conflict the couple can continue to be friends rather than sworn enemies.
Procedure for Mutual Divorce
To get a divorce by mutual consent, one must follow several steps. In India, the process of mutual divorce usually begins with the filing of a petition under Section 13B of the Hindu Marriage Act. Two motions are also involved in this procedure. Following are the important steps:
- Filing a Joint Petition– The first step is to file a joint petition in the relevant family court. This joint petition must be signed by both parties. Both parties sign a joint declaration in the divorce petition declaring that they can no longer live together due to fundamental disputes and should be granted a divorce. This declaration also includes a distribution agreement, parental rights, and other details.
- The appearance of both the parties in Court– The second step involved is the appearance of both the parties before the competent court before which the petition is filed. The court fixes the date and on this date, parties are asked to present before the court with their counsels.
- Court review of the petition– The court will review the petition as well as the papers filed by both parties. When the court is satisfied, it records both parties’ statements. In some situations, the court will attempt to mediate a resolution between the parties. When the parties are unable to reconcile, the divorce process begins.
- Recording of the statement and adoption of the order on the First Motion– When both parties’ statements are recorded, the court issues the first motion order. Previously, the parties were allowed six months to reconcile. This six-month period can be extended to eighteen months, after which a second motion can be submitted. This is no longer a required requirement. In the case of Amardeep Singh v. Harveen Kaur, the Supreme Court waived the six-month cooling period if it was believed that both parties were committed to the divorce, there was no possibility of cohabitation between an estranged couple, and no alimony, child custody, or property issues were raised.
- Appearing for Second motion– If neither party agrees to come together after six months from the first motion or by the conclusion of the reconciliation period, the parties may appear for the second move for the final hearing. This also entails the parties appearing in court and making remarks that are recorded. Both parties present their cases at the final hearing, and the court records their statements under oath in the family court.
- The Court’s decision– The most essential condition for a divorce by mutual consent is the free consent of both parties. In other words, unless there is total agreement between the husband and wife for the dissolution of the marriage and the court is satisfied, the court cannot grant a decree of divorce by mutual consent. Based on the parties’ declarations as well as the facts and circumstances of the case, the court makes the proper judgments and dissolves the marriage. The divorce is then finalized when the court issues a divorce decree.
Divorce is a painful issue that should only be used as a last resort; nevertheless, many people nowadays do not hesitate to divorce. It causes family disintegration, and the kid of a divorced marriage suffers substantial stress as a result of growing up with split parents. The best way to divorce is by mutual consent since the parties do not have to publicly embarrass each other in court and may resolve any issues and dissolve their marriage willingly. From the time of filing until the finalization of the divorce judgement, the total mutual consent divorce procedure might take anywhere from 6 months to 1-1.5 years.