What is Divorce by Mutual Consent?
(1)Section 13B of the HMA Act 1955 provides for divorce by mutual consent.vperiod of separation is 1 year
(2)Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent.
(3)Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years)
The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved. Under these circumstances a Divorce by Mutual consent can be filed.
Advantages of Mutual Divorce
Divorce By Mutual consent saves time, money and energy for both,
Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen in public.
With the increasing no of Divorce application being filed and the demand for quick divorce has become growing demand, Mutual consent divorce is the best option.
What is Divorce by mutual consent?
Divorce By Mutual Consent is as the name suggests is when both parties ie husband and wife come to a mutual understanding that the marriage be dissolved amicably.
How does it work:
In all there are two court appearances in a mutual divorce
- Divorce in delhi First A joint petition signed by both parties is filed in court .
- Divorce in delhi Secondly In the first motion statement of both parties are recorded and then signed on paper before the Hon'ble Court.
- Divorce in delhi Thirdly The 6 month period is given for reconciliation, (the hon'ble court gives a chance to the couple to change their mind)
- Divorce in delhi Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.
- Divorce in delhiFinally Divorce decree will be granted as the Hon'ble Court may deem fit.
Notice: As par the latest circulation the presence of wife's either parent at the time of hearing has become a must both in Delhi and NCR region for mutual divorce
Mutual Consent Divorce between Hindu Couple
Mutual Consent Divorce between Hindu Couple is governed by The Hindu Marriage Act, 1955, under Section l3B.
Which states that.- A petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
Mutual Consent Divorce in case of Court Marriage
Mutual Consent Divorce in case of Court marriage is governed by The Special Marriage Act, 1954 under Section 28.
Which states that.- A petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to it in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
Mutual Consent Divorce in case of Christian Couple
Mutual Consent Divorce in case of Christian Couple is governed by The Divorce Act, 1869, under Section lOA.
Which states that.- A petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
There are three other requirements for Mutual Consent Divorce under section 13(B) as follows:
1) The couple have been living separately for a period of one year or more
2) The couple not been able to live together and
3) The couple mutually agreed that the marriage be dissolved.
As par sub-section 2, the parties are required to make joint motion not earlier six months and not later than 18 months after the said date. This motion empowers the court to satisfy itself regarding the genuineness of the averments in the petition and also to verify whether consent was not obtained by fraud and undue pressure. The court may make such an inquiry including the hearing or examination of parties for the purpose of satisfying itself
Who will file and appear for you in court?
RDJ Law will present your Divorce petition before the Hon'ble court.
RDJ Law is one of Delhi's oldest law firm. Its a Fourth generation law firm with tremendous reputation on family law matters (marriage, divorce, maintenance, child custody, 498a, domestic violence, Sexual harassment etc). Servicing since pre independence era.
Your divorce will be personally handled by one of our reputed and well experienced lawyer.
The firm holds the reputation of providing quick and hassle free mutual divorce.
We appear in all Family courts in Delhi ie. Rohini Court, Patiala House Court, Dwarka Court, Saket Court, Karkadoma Court and Tiz hazari Courts, in special cases we also appear in NCR Courts such as Noida Court and Gurgaon District Court.
For Mutual Consent Divorce in Delhi:
Call us no: +91 9711905747 / or email at: rdjconsultants1@gmail.com
Here are the list facts to be mutually agreed upon in the petition for Divorce by Mutual Consent:
Firstly: Custody of child;
Secondly: Alimony (lump sum maintenance to be decided between parties);
Thirdly: Returns of items (dowry, streedhan, etc); and
Fourthly: Litigation expenses.
The mutual consent divorce petition should also contain a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce.
The court will pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
If the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent.
In a mutual consent divorce petition, the marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, that means Both parties have to agree to Divorce.
What does Divorce by Mutual Consent Mean?
Divorce by Mutual Consent means when both Husband and wife has agreed amicably amongst themselves that they cannot live together anymore and that the best solution is to Divorce, without putting forth any allegations against each other, in the court of law, than such a Divorce petition presented jointly before the honourably court, is known as mutual consent Divorce, it is the quickest form of divorce in India.
A. Formalities to be complied with
Under this section a decree for dissolution of marriage solemnized under this Act can be passed by a District Court on compliance with the following formalities:
(a) A petition is to be presented jointly by the parties to the marriage.
(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.
But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.
(c) The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
(d) The parties have freely consented to the agreement of dissolution of marriage.
(e) The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred. But in Sureshta Devi v Om Prakash it has been held that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.
(f) The court must be satisfied as to the averments in the petition after making inquiry and after hearing the parties which are initiated by a joint motion of the expiry of six months from presentation of the petition. The expression after hearing the parties appearing in sub-section (2) of section 28 of the Act does not require the presence of the parties before the court. Affidavit-evidence is sufficient for this purpose by virtue of section 40 of the Act which attracts the Code of Civil Procedure 1908 and which provides in Order 19 for proof of any point by affidavits.
B. Appeal and revision.
The maintainability of appeal though open to question, order is open to revision either under s.115 of the Code of Civil Procedure or under Art. 227
of the Constitution of India.
C. Ground of divorce by mutual consent
The ground of divorce by mutual consent is to be found in s. 28 of the Special Marriage Act 1954, and in s. 13B of the HMA. The Hon'ble court cannot read that ground under s. 10 of the Divorce Act 1869, by adopting a policy of social engineering.
D. Reconciliation necessary
Even if dissolution of marriage by mutual consent is sought by a joint petition of the husband and the wife still it is incumbent on the court to comply with the mandatory provisions of s. 34(2) of the Act to make attempt for reconciliation between the parties.
Can Mutual Consent be Withdrawal
Before a decree for mutual consent is passed, the question arises whether the party can withdraw its consent or not. At times, the question has also come before the Court and there was a conflict of opinions on the point whether the parties to divorce can withdraw its consent unilaterally. The Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bikaje Londhe. expressed the view that crucial time for the consent for divorce under section 13B was the time when the petition was filed.
How to file Divorce online ?
Getting divorced online is becoming a popular way for couples to end their marriage. There are many companies that provide divorce forms online. These websites prepare forms for you based on information you provide. Some have attorneys or paralegals review the papers. Others are the do-it-yourself type where you fill out the forms yourself. In each situation, the forms have to be done correctly or you may have to start again.
Can I File for Divorce Online?
Some states allow you to file for divorce online. These states have specific requirements for online divorce filing, so check your state’s court site to see whether your state allows e-filing for divorce.
As we get more connected to the internet, many states which do not permit e-filing will be on board in the next few years. It is likely that all states will allow you to get divorced online, but divorce requirements can vary from county to county, so you may be able to e-file your papers in certain counties but not in others. If you’re unsure if your county and state allow filing a divorce online, call the clerk’s office in your county. Even if you use an attorney for divorce, the attorney may be required to file for divorce online in your state.
Using Online Companies in Uncontested Divorces
If you’re filing an uncontested divorce, third party sites that specialize in filing online divorces can help. Your divorce is uncontested if you and your spouse have settled the major issues such as custody, visitation, child support, spousal support, division of property and division of debt.
Online sites for divorce can legally prepare documents for you, and many of the top sites will review the forms. Use of online sites for divorce, however, is not recommended if you and your spouse have a contested divorce where you cannot agree on all major issues.
Contested divorces can be difficult and can require a trial. While you may want to get divorced quickly, you shouldn’t do so where there are unresolved issues between you and your spouse. It’s great to have sites that can prepare a divorce, but you have to live with your divorce agreement that will be difficult to change later on. Using an attorney for a contested divorce is the right thing to do and the only thing that makes sense.
Additionally, you can obtain documents for an online divorce but the document company does not act as your attorney. You may want to have an attorney review your documents, especially if your case involves a lot of property or involves expensive property. In these instances, filing for divorce without an attorney is probably not a good idea.
Filing for Divorce Online
Getting a divorce online means having an online document company prepare your divorce papers and, if applicable for your state and county, submit them electronically. You also can prepare forms on your state’s court site and submit them through that site. Not all legal document companies will file divorce papers online.
How To Get a Divorce Online
To get a divorce online, you need to do the following:
1. Decide if you’re going to use an online document company or your state’s court site. A court website allows you to prepare forms on your computer but you have to do it yourself. Save your files as a PDF file and make several copies of all documents.
2. Make sure your divorce is uncontested and that you and your spouse have agreed to the terms of your divorce. Ensure that custody, child support, visitation, spousal support, division of assets and division of debt have been settled.
3. Include all of the details of your divorce in your divorce papers. Make sure your vital information is included, such as names, addresses, social security numbers, the date and location of your marriage, the names and birthdates of your children, and what property you are dividing. Include the grounds for divorce such as whether it is a no-fault divorce.
Fill out all required forms. You can usually find the forms you need on your court’s website, but court sites are tricky. Different forms can be required within states, so make sure you prepare the all of the forms you need for an uncontested divorce in your county.
4. Check your state’s court site or ask your county clerk how to file your divorce paperwork. Pay any fees required by your county and state. These fees are in addition to fees for document preparation. File the papers online, or take them to your county clerk at the courthouse if you can’t file them online.
5. Have your spouse served with the divorce papers, if required. This usually means service by someone more than 18 years old or by using a professional process server. You cannot usually serve the papers yourself. If you’re not sure how to serve papers, use a process server.
6. Prepare a divorce agreement that you and your spouse can live with. You may want to use an attorney for this part of the divorce so your agreement can be prepared correctly. This way there is less of a chance you’ll have to make court motions years from now unless there are major changes, such as wanting to move out of state with the children.
7. Make sure all necessary supplemental forms are added to your original papers or ask your attorney to complete the papers.
Getting a divorce online can be an easier alternative to a traditional uncontested divorce and can help prevent your divorce from becoming an emotionally painful experience by removing a lot of the formalities of the court process.
RDJ Law can help you prepare the divorce paperwork you need to get an uncontested online divorce. Get started by filling out our online questionnaire. We check your answers for consistency and completeness, and send you a final packet that includes your legal paperwork and step-by-step instructions for filing the paperwork.
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