What is mutual consent divorce?
Where both spouses agree that the marriage should end, they can file a joint petition under Section 13B of the Hindu Marriage Act, 1955. Section 28 of the Special Marriage Act, 1954 contains a similar provision. It is usually the quickest and least adversarial route to divorce.
Conditions to be met
The parties must have been living separately for at least one year before filing, and they must state that they have not been able to live together and have mutually agreed that the marriage should be dissolved. The one year of marriage bar under Section 14 also applies.
The two motions
The process has two stages. In the first motion the parties file the joint petition, record statements before the Family Court and the court passes an order. The second motion is heard after a waiting period of six months, and the parties must file it within eighteen months of the petition. If either party withdraws consent before the decree, the court cannot grant the divorce.
Waiver of the cooling off period
In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six month period is directory and can be waived where the parties have been separated for a long time, settlement including alimony and custody has been reached, and further waiting would only prolong their agony. In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench affirmed that the Supreme Court can also dissolve a marriage directly under Article 142 where it has broken down irretrievably.
The settlement agreement
Most mutual consent petitions rest on a settlement deed covering permanent alimony, streedhan and return of articles, custody and visitation of children, and withdrawal of pending cases. A carefully drafted deed prevents later disputes, and courts generally expect the settlement terms to be genuine and voluntary.
Documents usually required
[ListParagraph] Marriage certificate and wedding photographs.
[ListParagraph] Proof of address of both spouses.
[ListParagraph] Proof of separate residence for the past year.
[ListParagraph] Income and asset details.
[ListParagraph] The signed settlement agreement.
[ListParagraph] Details of any children.
Frequently Asked Questions
Q. How long does a mutual consent divorce take?
A. Typically between six and twelve months, depending on the court and whether the cooling off period is waived.
Q. Can one spouse back out?
A. Yes. Consent must subsist until the decree is passed, and either party may withdraw it before the second motion is decided.
Disclaimer: This article is for general information only and is not legal advice. The law may change, and the facts of each matter differ.