A mutual consent divorce is a voluntary, dignified, speedy, less expensive, and practical choice for the dissolution of a marriage. It involved both parties to the marriage, jointly and voluntarily petitioning that the marriage is essentially dead and that there is no scope for reconciliation. Thus, the parties on agreed terms of settlement, decide to terminate the marital tie between them. It is therefore, one of the preferred types of dissolution of marriage.
With the rise in the number of divorce cases in Bangalore, the family courts have also seen a rise in the number of Mutual Consent Divorce petitions they entertain. This is because it involves greater party autonomy, it is not as messy as a contested divorce, it is speedy and less expensive than a contested divorce as well.
It is necessary to understand the key requirements before filing for a mutual consent divorce petition so as to avail the best outcomes. Mentioned below, one will find an extensive guide on the process of mutual consent divorce in Bangalore. For experienced and knowledgeable advice, get in contact with prime legal’s divorce lawyers in Bangalore if you’re looking for lawyers in Bangalore.
What is Mutual Consent Divorce?
In a mutual consent divorce, Parties decide to jointly file for mutual consent divorce when there is agreement between the parties that the marriage has irretrievably broken down and there is no scope for reconciliation. It is preferred by couples seeking separation as it is cost-efficient, less time consuming, private, and it protects party autonomy. Before filing such a petition, the parties must mutually also decide on ancillary issues such as maintenance, child custody, division of assets, etc.
A mutual consent divorce is filed under:
- Section 13B of the Hindu Marriage Act, 1955, or
- Section 28 of the Special Marriage Act, 1954 or
- Section 10A of the Divorce Act, 1869.
It differs from a contested divorce as a contested divorce involves prolonged litigation, lengthy court procedures, which is expensive and time consuming. A contested divorce involves one party who files the petition seeking dissolution of marriage and the other party seeking continuance of conjugal life. Thus, a contested divorce is way more emotionally taxing for the parties.
Read more about divorce in our page on what is divorce in India.
Who Can File for Mutual Consent Divorce in Bangalore?
Parties who mutually agree that the marriage has broken down and there is no scope of reconciliation, the legal requirements to obtain a mutual consent divorce include:
- Requirement of Living Separately: The parties must be living separately (i.e. not as husband and wife) for a minimum period of 1 year before filing the MCD petition
- Mutual Agreement Between Spouses: The parties must voluntarily consent that the marriage is dead, there is no scope for reconciliation; the parties must mutually agree that the marriage must be dissolved
- Irretrievable Breakdown of Marriage: The parties must establish that their marriage has irretrievably broken down and there is no possibility of reconciliation
- Settlement of key Issues: There must be mutual settlement agreement of ancillary issues such as- Permanent alimony or maintenance, Child custody and visitation rights, Division of movable and immovable assets. This ensures that there are no future disputes between the parties on such ancillary matters.
If you are looking to understand more about the financial support and maintenance after divorce, read our detailed guide on alimony in divorce cases.
Documents Required for Mutual Consent Divorce in Bangalore
The various documents required for filing a mutual consent divorce petition includes:
- Marriage Certificate: The Marriage Certificate which acts as the proof of legal marriage.
- Identity and Address Proofs: Aadhar card, PAN card, passport, etc- i.e. Identity and address proofs of the parties
- Passport-Size Photograph:s Passport size photographs of both parties
- Proof of Separation (if available): If any documents are available which showcase that parties have been living separately such as rental agreement showing different addresses.
- Income Documents: Salary slips, bank statements, ITR, or other proof of income documents
- Settlement Agreement: Lastly, a written settlement agreement (MoU) laying down all the mutually agreed terms related to ancillary issues such as child custody, maintenance, alimony, property rights, etc.
Read our guide to understand the list of documents required for divorce in India.
Step-by-Step Mutual Consent Divorce Procedure in Bangalore
Step 1 – Consult Divorce Lawyers in Bangalore:
To initially evaluate the facts of the case, obtain guidance on whether the parties can file for mutual consent divorce, understand their rights and obligations, guidance on legal procedure etc, you have to consult the best divorce lawyers in Bangalore.
Step 2 – Drafting the Mutual Consent Divorce Petition:
Filed jointly by the parties is drafted by a lawyer, it includes details of parties, date, place and solemnization of marriage, number of children, facts and period of separation, grounds for seeking divorce, settlement terms and declaration that consent is voluntary. The Lawyer’s role is to ensure that all the statutory or legal requirements are met.
Step 3 – Settlement of Alimony, Child Custody, and Property Matters:
Written MoU of alimony, maintenance, child custody, and division of property and assets.
- Financial Settlement must include agreed on lump-sum alimony, monthly maintenance, waiver of financial claims, payment schedule and methods.
- Child Custody Arrangement i.e. agreement on joint custody, permanent custody and visitation rights, financial and legal responsibilities, etc, keeping in mind the welfare of the child as the paramount consideration.
- Documented division of assets and properties: of jointly owned properties, loans and liabilities, investments, bank accounts, etc.
Step 4 – Filing the First Motion Before the Family Court:
After filing of the petition, both spouses must appear before the court. Then the court reviews the petition and the settlement terms, records statements of both parties, and confirms that both parties have decided on MCD via free consent.
Read our guide to get a better understanding of divorce procedures in Bangalore
Step 5 – Court Counselling and Mediation:
Courts often refer the parties to counselling sessions and mediation proceedings as the last effort of reconciliation before dissolving a marriage. Only if reconciliation remains unsuccessful, the matter proceeds further.
Step 6 – Cooling-Off Period:
Involves a 6- month waiting period between the first and second motion hearings. This offers the parties an opportunity for reconciliation. The court may waive off the cooling-off period in exceptional circumstances, i.e. the parties have lived separately over a long period of time, there is no possibility of reconciliation, where waiting shall only prolong hardship (as per the supreme court guidelines in Amardeep Singh v. Harveen Kaur, 2017 (8) SCC 746).
Step 7 – Filing the Second Motion:
After the cooling-off period ends, the parties must again appear before the court in the second motion hearing. In the second motion hearing, the existence of mutual consent for divorce is further confirmed, the settlement terms are verified, and clarifications are sought from the parties.
Step 8 – Grant of Divorce Decree:
Lastly on the court’s satisfaction that all the legal requirements have been met, the Court grants the decree of divorce that legally dissolves the marriage. This is the final order of the court in an MCD proceedings which has the effect of terminating the marital relationship between the parties, all settlement terms become enforceable once this final order is given. Parties may obtain certified copies of the order for their records.
How Long Does a Mutual Consent Divorce Take in Bangalore?
The time frame of a mutual consent divorce proceeding is different from case to case, but usually it takes about 6 months to 1 year. The duration of the proceeding depends on the workload of the court, availability of the parties, settlement terms, completeness of the documentation, cooling-off period or waiver. If waiver of cooling-off period is granted and if documentation is complete, the process may conclude quicker.
Can the Cooling-Off Period Be Waived?
Yes. As per the case of Amardeep Singh v. Harveen Kaur (2017), the Supreme Court has held that the six month cooling-off period is not mandatory but rather directory. This cooling-off period can be waived by the court’s discretion via application of the parties in exceptional circumstances such as
- That the parties have been living separately over an extended period of time.
- All mediation and reconciliation attempts have failed.
- All ancillary issues such as alimony, maintenance, and child custody have been settled.
- Prolonging the marriage shall only add to the agony of the parties.
What Happens If One Spouse Withdraws Consent?
If one party / spouse withdraws consent before the second motion, the MCD cannot proceed, i.e, it fails. The recourse then lies to filing a contested divorce petition on appropriate legal grounds.
The court in Smt. Sureshta Devi vs Om Prakash, 1991 (2) SCC 25, had held that for a mutual consent decree “the consent must continue to decree nisi and must be valid subsisting consent when the case is heard.“
Further, the case of Rajiv Chhikara v. Sandhya Mathur, 2016 SCC OnLine Del 6224, laid down that unjustified withdrawal of consent before the second motion amounts to cruelty.
Read our guide for better understanding of contested divorce procedure in Bangalore.
Benefits of Mutual Consent Divorce
- Mutual consent divorce offers a quicker resolution than a contested divorce
- Reduced legal costs as there are not as many court appearances required.
- Less emotionally overwhelming as the process focuses on mutual agreement
- Better privacy protection for personal issues
- Party autonomy over settlement agreement on matters of maintenance, custody, and property.
Common Mistakes to Avoid During Mutual Consent Divorce
- Incomplete settlement agreements that do not cover all custody, maintenance, financial issues leading to future disputes
- Incomplete and inaccurate documentation can lead to procedural delays and complications.
- Parties are often unaware of tax implications of settlement agreements
- Delays of failure to appear before court on scheduled days prolong the proceedings
Why Choose Anik & Associates for Mutual Consent Divorce Cases in Bangalore?
Anik & Associates offers clients an experienced team of lawyers with extensive family law practice. Clients receive support for professional documentation and drafting making the entire process seamless. Here, at Anik & Associates, our team offers a settlement-focused approach to minimize conflict. Furthermore, our team is at the client’s service for proper and effective court representation and legal support. Thus, hiring Anik & Associates having the best family lawyers in Bangalore, offers effective legal strategy along with compliance with procedural requirements, thereby making your experience stress-free.
Conclusion
Mutual consent divorce offers couples a simple and respectful way to end their marriage when getting back together isn’t an option. Spouses can avoid long court battles and find resolution with more certainty by amicably resolving differences and adhering to the legal process. It is important to be aware of the criteria, be ready with the relevant documents and handle ancillary issues in order to facilitate a smooth process, and rapidly provide legal assistance. If you are planning a mutual consent divorce in Bangalore, you should be able to seek legal advice, ensure your rights are protected and help guide the process. Contact Anik & Associates lawyers in Bangalore today for knowledgeable legal facts and good advice in your divorce with your spouse through mutual agreement.
Frequently Asked Questions
1. How long does a mutual consent divorce take in Bangalore?
6 months to 1 year depending on the facts and complexities of the case.
2. Can mutual consent divorce be completed within six months?
Yes. If the courts waive the cooling-off period on satisfaction of the SC guidelines on waiver.
3. What documents are required for mutual divorce in Bangalore?
Marriage certificate, identity proofs, address proofs, photographs, income records, and settlement agreement.
4. Can mutual consent divorce be filed online?
No. India does not have any system for online filing of divorce.
5. Is it necessary to hire divorce lawyers in Bangalore for mutual divorce?
While it is not mandatory, it is recommended so as to effectively protect one’s rights and interests.
