Divorce By Mutual Consent: A Simple Way To Conclude Your Marriage
Resolving disputes amicably is always the best approach. In mutual divorce proceedings, there are no allegations or counter-allegations, as both parties agree to separate peacefully. The main reasons cited are incompatibility and an irretrievable breakdown of the relationship, with no possibility of reconciliation.
Apart from the agreed terms, both parties give up any future claims against each other, their families, or relatives—whether for past, present, or future matters. They also agree not to interfere in each other’s lives in any way, directly or indirectly. Additionally, they commit to never defaming each other or posting anything negative about one another on social media or any other platform.
In a divorce by mutual consent, all disputes are settled together, making the process smooth and efficient. On the other hand, if the parties cannot agree due to irreconcilable differences, they must pursue separate legal proceedings for each issue. This not only takes more time but also involves significantly higher expenses compared to a mutual settlement.
LEGAL CRITERIA AND REQUIREMENTS FOR MUTUAL CONSENT DIVORCE.
The eligibility for divorce by mutual consent is determined by the personal laws governing the parties, primarily concerning the statutory separation period. For Hindus, a minimum separation of one year is required, while for Christians, the period is two years. In contrast, Muslim law does not mandate a specific separation period.
DATE OF MARRIAGE:
The parties must be married for at least one year before filing for divorce by mutual consent, as it cannot ordinarily be initiated within the first year of marriage. However, in exceptional circumstances, a special application (such as under Section 14 for Hindus) may be submitted along with the divorce petition, seeking court permission to file within the one-year period.
JURISDICTION:
Place of marriage, Parties Last resided together, the place where the wife resides after separation. If the wife lives abroad, the place where the husband is residing after separation is where the divorce petition is presented.
REQUIREMENTS:
For Hindus, the parties must be separated for at least one year, while for Christians, the requirement is two years before filing for mutual consent divorce. The Karnataka High Court has recognized that living under the same roof without cohabiting as husband and wife also qualifies as separation for the purpose of filing a mutual divorce petition.
AGREEMENT:
The parties should agree for the following:
ALIMONY OR NO ALIMONY
If the wife is capable of maintaining herself, then she is not entitled to any maintenance, though if both parties agree to any amount, then the court will not question that.
CHILD CUSTODY:
In most cases, custody of a child below 18 years is granted to the mother, unless exceptional circumstances justify otherwise, with the child’s welfare being the primary consideration. However, the parents may mutually agree on sole custody with either parent or opt for shared custody. To ensure minimal disruption to the child’s routine, arrangements can be made for equal time distribution while considering accommodation in the same or a nearby locality.
GUARDIANSHIP OF THE CHILD:
Guardianship plays a crucial role in making decisions regarding a child’s daily needs, education, and specific matters such as applying for a passport or visa, where the guardian’s consent is required. Unless otherwise agreed, both parents remain co-guardians of the child. They may choose to continue as co-guardians or mutually decide on sole guardianship with either parent.
CHILD SUPPORT:
A child’s essential financial needs include day-to-day expenses, school fees, extracurricular activity costs, medical expenses, and insurance. Parents can mutually decide on a suitable financial arrangement, such as the father bearing the full expenses or sharing the costs based on a calculated structure. In contested cases, when the mother is financially independent, the entire burden is not solely placed on the father. However, in mutual consent divorce, both parties have the flexibility to agree on any terms, as the court does not impose financial obligations on either party.
CHILD VISITATION:
non-custodial parent has the right to visit the child, just as the child has the right to maintain a relationship with the non-custodial parent. Visitation arrangements can be mutually decided based on what works best for both parties. In contested cases, visitation often begins with 15–30 minutes of video calls on alternate days, progressing to in-person visits ranging from a few hours to weekends every fortnight, depending on the child’s age. It may also extend to half of the school vacations and a few hours on special occasions like birthdays and festivals. However, in a mutual consent divorce, both parents have the flexibility to establish a visitation schedule that meets their mutual satisfaction.
DISPOSAL OF JOINT PROPERTIES:
To prevent future disputes, all potential areas of conflict should be addressed and resolved at the time of obtaining a mutual consent divorce. Jointly owned properties must be settled, either by one co-owner transferring their share to the other or by selling the property and dividing the proceeds as mutually agreed. Even if the property is under a loan, settlement is possible by consulting the bank and obtaining a No Objection Certificate (NOC), as has been done in past cases.
Process of Divorce by Mutual Consent:
With agreeing all terms and conditions mentioned above parties sign the Joint Mutual consent Petition and the same will be filed before the Family Court.
Cooling off Period:
The standard cooling-off period for mutual consent divorce is six months. However, if there are valid reasons—such as the age of the parties, personal circumstances, or career opportunities—the court may consider waiving this period. In such cases, an application can be filed along with the divorce petition, requesting a waiver. The court will review the arguments and supporting documents before deciding whether to waive the cooling period partially or entirely. Once the decision is made, the matter will be scheduled for the parties’ appearance within a few days, weeks, or months, depending on the court’s discretion.
Appearance of parties / referring the matter to mediation
MEDIATION:
One mediator is appointed by the Court to help you make a final divorce agreement. Once you both approve the deal, type it by the mediator and sign. Your terms
Final Appearance / Reporting settlement:
The Court will ask you for the content like date of marriage, place of marriage, and other terms mentioned in the agreement to confirm if there is any coercion on you. Once all the answers are given, the Court will pass an order of divorce in terms of settlement agreement.
DECREE:
Preparing the final decree takes two weeks.
The final court order, mediation agreement and decree will form your divorce documents.
