Getting a divorce is no simple matter at all. Sometimes even if both parties agree that they will separate there are still questions to be answered.
- What town/city is the best place to divorce in?
- How many days does it take?
- Is there any court date?
- What will be done with our finances, our home or our kids?
If you want to understand the legal process, then it becomes a bit easier for you to deal with this already challenging situation as a couple living in Gurugram or any other metro city.
Mutual consent divorce is a legal option for couples to divorce without meeting the burden of proving the other spouse’s misdeeds. But it is not just a sign of agreement and you’re home free. There are court processes and legal requirements that both parties need to know.
In this guide, we will discuss the mutual consent divorce process, its essential documents, and things to consider before filing the divorce.
What is Mutual Consent Divorce?
Mutual consent divorce (आपसी तलाक ) is a legal procedure whereby two people get divorced by mutual will. In a contested divorce, one spouse initiates the divorce action, and the other spouse might fight it, whereas in a mutual consent divorce, both parties agree to the divorce.
Section 13B of the Hindu Marriage Act, 1955, gives the power for divorce by mutual consent for marriages governed by the Hindu Marriage Act, 1955. In general, the spouses should prove that:
- They have lived apart for a year or more.
- They have not been able to share a home together as husband and wife.
- They both agree to the want of the marriage.
Being separated does not necessarily mean that they live at different homes. The point of contention is whether the couple are living together as husband and wife, and this will depend on the circumstances.
It is also important to note that Section 13B only applies to marriages under the Hindu Marriage Act. Under other personal laws, which may apply to couples who are married under the Special Marriage Act (SMA), there may be other provisions.
How to file for Mutual Consent Divorce in Gurugram? The procedure of filing Mutual Consent Divorce in Gurugram?
Usually, the procedure is to draft a united petition, go to the relevant court and proceed through the relevant legal process.
Step 1: Discuss and Settle Important Matters
Before seeking mutual divorce, it is essential for both parties to be aware of the issues that could impact their lives after separation.
These commonly include:
- Whether or not one spouse will receive alimony and/or maintenance payments.
- What will be done with jointly owned property, money in the bank or other assets.
- Who to whom children will be entrusted.
- How visitation and parental duties will be organized.
- Whether there are any pending lawsuits that need to be dealt with.
- Return of personal property, jewellery and other agreed upon property.
These conversations are so important because when you agree to divorce, you don’t necessarily agree to all the things that pertain to the marriage.
For instance, a couple may decide to divorce but have differences regarding how to handle child custody or how to make the payments on a settlement. Addressing these issues in the pre-litigation stage can minimize confusion in litigation.
Step 2: Joint Divorce Petition is prepared.
Upon mutual consent of the spouses, a joint petition is filed in accordance with the relevant law. The petition usually specifies when and where the wedding was performed, the addresses of the parties, the period of separation and each party’s determination to divorce.
In addition, if applicable, the claim can be made reference to the terms of settlement reached between the spouses. The information given should be correct and consistent with all supporting documents.
Step 3: Submit Petition to the Proper Court
The petition can be filed before the Family Court having jurisdiction over the case for couples residing in Gurugram. But it is not mandatory that all couples in Gurgaon are allowed to file here.
As per Section 19 of Hindu Marriage Act, jurisdiction may be based on various factors like place of marriage, the last common residence of the parties and the present residence of the parties subject to the stipulations of the Act.
For example, a couple may have been married in Delhi, but have been residing in Gurugram. It will depend on the facts and the jurisdictional requirements as to whether or not it is the right place to file.
It is good practice to establish jurisdiction prior to preparing the filing documents.
Step 4: First Motion — The Initial Court Appearance
Once the joint petition is filed, the court usually takes the first-motion deposition statements from both spouses. The court can try to prove that both parties are aware of the petition and are doing it voluntarily. It can also consider the potential for reconciliation as per the relevant legal provisions.
The stage is not a question of blame for the marriage failure being placed on one of the spouses. Rather, it’s a discussion about the legal procedure for a mutual consent divorce and the actual agreement of the parties.
Step 5 is the beginning of the six-month cooling off period.
I always here this question from clients like
Why should we have to wait six months after the first motion?
The Hindu Marriage Act, Section 13B(2), allows for a timeframe between the first and second notices, during which the parties await an admonition.The Hindu Marriage Act, Section 13B(2) allows a time period between the first and second notices, when the couples await an admonition.
This is a time to allow the couple to think about changing their minds. The 6-month period is not mandatory in all situations, though.
Factors to take into account are if the reconciliation has been unsuccessful, if both the couple have addressed any issues and if additional time would be beneficial.
A waiver is not automatically granted. Whether the circumstances call for it is at the discretion of the court.
Step 6: Second Motion and Final Divorce Decree
At the second-motion stage, both spouses generally reaffirm their consent to the divorce.
The court considers whether the legal requirements have been satisfied and whether the consent remains genuine.
If satisfied, the court may grant a decree of divorce.
The marriage is legally dissolved when the decree takes effect, not merely because the spouses have signed a private settlement agreement.
Documents Required for Mutual Consent Divorce Process in Gurugram
The needs of the documentation may differ according to facts of a case and court procedure.
These are some of the most typical documents to be relevant: There are several reasons why it might be necessary.
| Document | Why It May Be Needed |
| Marriage certificate, if available | To establish marriage details |
| Wedding photographs or other proof of marriage | Supporting evidence of the marriage |
| Identity documents of both spouses | To verify identity |
| Address proof | To establish residence and relevant jurisdictional facts |
| Joint divorce petition | To formally request dissolution of marriage |
| Settlement agreement, where applicable | To record mutually agreed terms |
| Children’s birth certificates, if applicable | For child-related arrangements |
| Income or financial records, where relevant | To support financial settlement terms |
| Documents relating to pending proceedings | To address connected legal matters |
Not all of the above documents will be required for all couples. For instance, if you are a couple with no kids, you would not need to put in efforts to make arrangements regarding child custody. Likewise, settlement paperwork may differ based on the sort of settlement. Having the necessary documents ready ahead of time can prevent delays.
How long does Divorce take in Gurgaon if it is based on mutual consent?
No one size fits all when it comes to mutual consent divorces. The time varies based on a variety of factors such as the court’s scheduling, the documents required, and if both parties continue to agree and if they waive the cooling off period.
The second motion is covered by the statutory framework for the waiting period under the ordinary Section 13B procedure. If the waiver is granted, the process may be aborted earlier. But this does not mean that it will be completed on a specific date.
Couples should look out for promises of a quick divorce in a specified number of days. Only a realistic time frame can be evaluated after taking into account the facts of the case.
Is it possible to Finalize a Mutual Consent Divorce without going through court?
A mutual agreement between spouses is not enough to dissolve a marriage under the Hindu Marriage Act. It must be done under court order. Whether both spouses need to appear at each hearing will depend on the circumstances and the applicable procedures and directions of the court. Courts can allow participation via video conference or other means as appropriate.
Couples, who do not live in the vicinity of Gurugram and NRIs, should check what arrangements are legally possible instead of taking it for granted that the entire process is online.
Mutual Divorce – What Happens to Alimony and Maintenance?
Many people think that mutual consent divorce implies that no maintenance or alimony can be paid to either spouse.
This is not true.
Financial contributions shall be arranged according to the situation and the agreement reached between the parties considering the applicable law.
A couple can agree to a lump sum payment, another legal arrangement of finances or a legally agreed-upon set of conditions in which no payment is requested.
It is appropriate to settle before and to understand the settlement and how, when and what will be paid in addition to any settlement obligations.
If the financial terms are unclear, there may be conflicts even after the divorce has been finalized.
What About Child Custody and Visitation?
If children are to be part of the arrangements, their welfare should be at the heart of the arrangements. Parents may come to an agreement on custody, visitation, education and financial support.
The court does not however have to accept every term relating to the child when both parents agree to it. The welfare of the child is always paramount.
A practical parenting plan should be discussed prior to everything, including the child’s school schedule, vacation, medical issues, and how the child communicates with both parents.
It should be a goal to stabilize the child and not to make the custody conflict a victory or defeat. Just do remember Where children are involved, child custody should be considered carefully before finalizing the divorce settlement.
May One Spouse Withdraw Consent once it’s filed?
Yes, the issue of continuing consent is important. Mutual consent divorce is based on the consent of both parties at the proper moments during the case.
Generally, even if both parties had agreed to a divorce earlier, the court will not grant a mutual consent divorce under Section 13B if one party has withdrawn their consent before the decree.
The legal implications of withdrawal might vary based on the situation, settlement and the status of the case. That’s a good reason for both husbands and wives to read the terms carefully before filing.
Common Mistakes to Avoid During Mutual Consent Divorce
Although the decision to split up is made together, there are some pitfalls that can make the process more difficult.
Impulsive settlement: Facing financial/parenting obligations without taking the time to understand the long-term implications can lead to issues down the road.
Don’t rely on verbal agreements: Record important terms of settlement clearly and appropriately.
Assuming the six-month waiver is guaranteed: A waiver remains subject to judicial discretion.
Overlooking pending cases: Existing maintenance, domestic violence or other proceedings may require careful consideration as part of an overall settlement.
Treating a signed agreement as a final divorce: The marriage remains legally subsisting until it is dissolved in accordance with the applicable law.
FAQs
1. Is one year of separation necessary for mutual divorce?
Ans- Section 13B(1) of the Hindu Marriage Act provides that a joint petition must be filed after a lapse of one year from the date of separation between the parties. The 6-month cooling off period is additional and the 1-year separation is not a 6-month separation.
2. Can we file for mutual divorce in Gurgaon if we got married in Delhi?
Ans- Possibly. The place of marriage is only one of the factors relevant to jurisdiction. Where the spouses last resided together and other statutory conditions may also matter.
3. Is the waiting period of 6 months waivable?
Ans- Yes, provided this is appropriate. The court assesses the circumstances and Supreme Court guidance and decides on granting of waiver.
4. Does alimony have to be paid in mutual consent divorce?
Ans- Not all mutual consent divorces have a fixed amount of alimony payments. Financial terms are based on the situation, applicable law and agreement between the parties.
5. Can two NRIs get divorce from each other in Gurugram?
Ans- If there is jurisdiction of the appropriate Indian court, it may be possible. The requirements of residence, marriage details, applicable law and procedural requirements should be considered.
6. After the first motion can one spouse change their mind?
Ans- Yes. Continuing mutual consent is generally necessary before the court grants a decree under Section 13B.
Final Thoughts
A mutual consent divorce ((आपसी तलाक ) is sometimes considered to be an easier option than contested divorce. In many cases, it can shorten the process of drawn-out litigation as both parties have already decided to terminate the marriage. However, simplicity does not mean that lawyers’ minutiae can be ignored.
There are issues around jurisdiction, settlement, money, children and procedure which should be considered. When couples are thinking about giving their relationship a shot at a marriage that might be mutually ended by divorce, it’s crucial that they understand these points before beginning the procedure.It’s essential for couples to be aware of these points before they start the process of mutual consent divorce in Gurugram so that they have the information required to make informed decisions.
While a marriage is coming to an end, the agreements reached through the divorce process will impact the individuals as well as their families for many years to come.
Legal information note: This article aims to offer a general educational note on one of the major aspects of the Hindu Marriage Act, 1955 – mutual consent divorce. It is no replacement for advice on individual facts. The procedures and requirements may differ in accordance with the law and court instructions.