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Explained: How to Get a Mutual Consent Divorce

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A divorce petition can be filed in the Family Court

What is divorce by mutual consent?

When you and your spouse have amicably resolved terms of separation to part ways, you can dissolve the marriage by filing a mutual consent divorce petition (under Section 13B of the Hindu Marriage Act, 1955) (under Section 28 of the Special Marriage Act, 1954) before the Family Court.

Where is the divorce petition filed?

A divorce petition can be filed in the Family Court of the area (a) where the marriage was solemnised (b) where you and your spouse last resided together (c) where the wife resides.

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Can I file a mutual consent divorce on my own?

Though law does not prohibit it, but it requires special drafting and it is always advisable that you engage the expertise of a lawyer to ensure that your rights are secured during separation.

What is the procedure for mutual consent divorce?

Mutual consent usually requires two major filings in court:

a. Petition for first motion u/s 13B(1) of Hindu Marriage Act, 1955

After recording of statement in the first motion a statutory “cooling period” of minimum 6 months and maximum 18 months for the parties to rethink their decision after which if the parties still want divorce, they proceed to the next step wherein they have to file:

b. Petition for second motion u/s 13B(2) of Hindu Marriage Act, 1955

Can this 6 to 18 month “cooling period” be waived?

The Hon’ble Supreme Court of India has held in 2017 that this period can be exempt under 4 specific conditions and can be waived by the concerned Court if the facts and circumstances so demand. For this an additional application has to be filed along with the Petition for second motion u/s 13B(2) which will enlist why the cooling period is not applicable in your case.

Can one advocate represent both the parties in the mutual consent divorce?

Yes.

How much time will it take to get divorced via mutual consent?

Though contested divorce matters can take forever to reach fruition, divorce through mutual consent can be obtained within a short span of 1 to 2 months.

(The author, Prachi Mishra, is a Supreme Court lawyer and Additional Advocate General, Chhattisgarh)