Divorce by Mutual Consent. Steps and documents required. A step by step guide to Divorce

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Divorce by mutual consent can be obtained within six months, but no petition in such a case can be filed within the first year of marriage. There also has to be a gap of six months between the first and second motions. The court can waive this cooling-off period in some cases. Sec 14 of HMA comes into play if the spouse wishes to get a divorce within 1 year of marriage.

Step 1: Petition to file for divorce

Firstly, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for one year or more. This petition will, then, be signed by both the parties.

Step 2: Appearing before Court and inspection of the petition

Both parties will have to appear before the family court after the filing of the petition. The parties would present their respective counsels/lawyers. The court would critically observe the petition along with all the documents presented in the court. The court may even attempt to bring reconciliation between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.

Step 3: Passing orders for a recording of statements on oath

After the petition is scrutinized by the court and it satisfies, it may order the party's statements to be recorded on oath.

Step 4: First Motion is passed and 6 months is given before the Second Motion

Once the statements are recorded, an order on the first motion is passed by the court. Six months is given to both the parties to divorce before they can file the second motion.

The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.

Step 5: Second Motion and the Final Hearing of petition

Once the parties have decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings. This includes parties appearing and recording of statements before the Family Court.

Step 6: Decree of Divorce:

In a mutual divorce, both parties must have given consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc(M.O.U)

Thus, there needs to be complete agreement (M.O.U) between the spouses for the final decision on the dissolution of marriage. If the court is satisfied after hearing the parties that the allegations in the petition are true and that there cannot be any possibility of reconciliation and cohabitation, it can pass a decree of divorce declaring the marriage to be dissolved.

In brief, the steps involved are.

STEP 1: First Motion involves the joint filing of a divorce petition.
STEP 2: Husband & wife appear before the court to record statements after filing of the petition. Court passes the order on First Motion after examining the petition and hearing both the parties.
STEP 3: Cooling-off period of six months given to the couple by the court to reconsider the decision.
STEP 4: Filing of Second Motion is done within 18 months of First motion. A minimum period of 6 months' colling period.
STEP 5: Decree of divorce passed by the court on the appearance of both parties.

The divorce becomes final once the decree of divorce has been passed by the court.

Colling off 6 Months period.

Recently, the Supreme Court has held that the 6 months given to the parties can be waived off at the decision of the court.

Even if the court believes that the waiting period will only extend their sufferings, the six months can be waived off in this case also.

Document. 
The main documents required to file a Mutual consent Divorce. 

• Address proof of husband and wife.
• Certificate of marriage. 
• Photographs of marriage. 
• Other documents too may be needed, depending on the facts and circumstances of the case.

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Bishwa Kumar Jain # 9582584584 B com (h). L.L.B. DIP Cyber Law. Member International Arbitration U.K. Practice Advocate Supreme Court and High Court of Delhi.