This article is written by Siya Sharma of 1st semester of Damodaram Sanjivayya National Law University.
Abstract
Divorce is a difficult and complicated process that impacts countless people and families all over the world. However, it can become an even more complicated process when the decision to separate is not mutual. Divorce by mutual consent has drawn a lot of attention among the different legal routes to dissolution as a more cooperative and peaceful method. In this article, we will discuss what a divorce by mutual consent is, its advantages and disadvantages, and the legal process involved.
Keywords
Mutual consent, divorce agreement, separation period, first and second motion of order, khula and mubarat
Introduction
When both parties mutually agree to end the marriage, the process is known as ‘divorce by mutual consent’. A divorce by mutual consent is one in which both parties consent to the dissolution of the marriage and reach an understanding regarding matters including property division, child custody, and spousal support. This type of divorce is becoming increasingly popular as it is less stressful, time-consuming, and expensive compared to other divorce processes. The purpose of divorce by mutual consent is to reduce the stress on both the emotional and financial fronts that standard divorce procedures can bring.
What is Divorce by Mutual Consent?
Divorce by mutual consent is a type of divorce where both parties agree to end their marriage without any fault. Mutual consent is defined as “as agreed by the parties concerned.”
The legal termination of a marriage by a court or other competent body is referred to as divorce.
Husband and wife are the parties involved in a marriage. They can therefore legally dissolve their marriage whenever they decide to do so or feel the need to do so. It is a relatively straightforward and amicable process that allows couples to dissolve their marriage in a civilized manner.
In some jurisdictions, it may also be called a “no-fault divorce” or an “uncontested divorce.” This type of divorce is generally quicker and less expensive than a contested divorce, which can involve lengthy court battles and higher legal fees.
To obtain a divorce by mutual consent, both parties usually need to submit a written agreement to the court outlining the terms of their divorce, which the court will review and approve. In some jurisdictions, a court hearing may still be required to finalize the divorce, even if both parties are in agreement. Divorce by mutual consent is a less contentious and complicated process that can reduce time, expense, and emotional stress, as opposed to a disputed divorce, where the spouses disagree on one or more points and must appear in court to address them.
Requirement for filing a Divorce by Mutual Consent
The requirements for filing a divorce by mutual consent may vary depending on the jurisdiction, different acts in India regulate the divorce process. If the couple is married by the Hindu Marriage Act, of 1955, the rules for divorce set under this Act would apply. If the marriage was solemnized under the Special Marriage Act, of 1954, then it would apply. The Divorce Act of 1869 would apply to all other divorces.
According to Section 13B of the Hindu Marriage Act, 1955 when a Hindu marriage ends by mutual consent, it stipulates a period of separation of 18 months — one year under Section 13B(1) and six months under Section 13B(2).[1]
Section 28 of the Special Marriage Act, 1954 requires the couple to be living separately for at least one year before divorce proceedings can begin[2]. However, the couple must be apart for at least two years before filing for divorce under Section 10A of the Divorce Act, of 1869[3].
Living apart does not necessarily involve relocating; the couple only needs to prove that they have not been living as husband and wife during this period. To decide on the terms of the divorce settlement, both partners must be mentally and legally competent. Both spouses must disclose all their assets, debts, and income to each other, and they must be honest and transparent in their negotiations. Most states require either one or both of the parties to reside in the state where the divorce petition is being filed. The duration of residency varies by state and is typically between six months and a year.
Process for filing a Divorce by Mutual Consent
- Draft a divorce settlement agreement:
Both spouses need to agree on issues such as property division, alimony, child custody, and child support. A lawyer can help draft a legally binding divorce settlement agreement that reflects the terms agreed upon by both spouses.
- Filing of the Petition in the Family Court:
Both spouses file a joint petition with the Family Court for the dissolution of their marriage and issuance of a divorce judgment because they are unable to resolve their differences and coexist peacefully. Consequently, they have mutually decided to end their marriage or they have been apart for at least a year. Both parties are required to sign this petition.
- Appearance before the Family Court Judge:
Along with their legal representatives, both parties will appear before the court. The petition’s contents as well as every document submitted to the court will be reviewed by the Family Court Judge. Although the court may try to mediate the issues between the spouses, if this is unsuccessful, the case moves forward.
- Joint Statement on Oath:
After reviewing the application’s contents, the court may order that the parties’ joint statements be taken under oath and signed by both parties and their respective counsels before the first motion is approved.
- First and Second Motion of Order:
The court issues an order in response to the first motion. Following this, both parties to a divorce have a six-month cooling-off period before they can file the second motion. The second motion may be filed up to 18 months after the divorce petition was initially filed in the family court.
- Final Decree:
The parties begin the final hearings after deciding to move forward with the proceedings and appeared for the second motion. This includes parties appearing and recording joint statements before the Family Court.
The mutual divorce procedure is complete if the couple declares that they do not disagree on any issues about alimony, child custody, or property division. For the court to make a final ruling, the couple must agree. The divorce is finalized when the court issues a decree of divorce declaring that the marriage has been dissolved.
The parties may withdraw the petition at any moment. Within six months of the petition’s presentation date, it appears that the petition may be withdrawn even at the request of one side. The unilateral right of a party to withdraw the petition, however, appears to be barred when a joint motion is made by the parties for inquiring after six months have passed but before the expiration of eighteen months from the day, the petition was presented.
Divorce by Mutual Consent under different laws
Divorce rules vary according to religion. The Hindu Marriage Act of 1955 rules divorce among Hindus. This includes Buddhists, Jains, and Sikhs. The Indian Divorce Act of 1869 applies to Christians. Both the Muslim Women (Protection of Rights on Divorce) Act of 1986 and the Personal Laws of Divorce and Dissolution of Marriage Act of 1939 apply to Muslims. A secular legislation, the Special Marriage Act of 1954, governs interreligious marriages.
Divorce under Muslim Law:
Under Muslim law, there are two types of divorce. – judicial and extra-judicial. Divorce for Muslims falls under the extra-judicial category. There are two different types of mutual divorce/agreements: Khula and Mubarat.
Muslim law defines a “khula” as an agreement between a husband and wife to end a partnership without compensation (a portion of her property) made by the wife to her husband[4]. Even though this consideration is important, the actual delivery of property is not a precondition for the validity of the divorce under the ‘khula’ system. When the husband gives his approval, an irrevocable divorce occurs, and the husband has no legal power to revoke the “khul” because the payment was not given.
The “Mubarat” form of mutual divorce requires that both parties desire a divorce; hence, either the wife or the husband may propose the divorce. Both of these parties should be prepared to part ways[5]. The opposing party must accept the offer when it is made, and if it is accepted, the divorce is final and cannot be reversed.
The wife must go through the “iddat” phase in both “Khula” and “Mubarat,” and in both cases, the decision to divorce is made by the parties themselves without the need for judicial intervention.
Mutual Divorce under Parsi Law:
Provisions for marriage and divorce for Parsis in India are given in the Parsi Marriage and Divorce Act, of 1936. Divorce by mutual consent is allowed under Section 32-B of the Amendment Act of 1988[6]. It states that both the husband and wife may jointly petition for mutual divorce under the justification that they have been unable to live together and have been living separately for at least a year. They must both explicitly express that they agree the marriage should end. Only after one year has passed since the marriage date may a lawsuit be brought under this provision.
Advantages of Divorce by Mutual Consent
By getting a divorce by mutual consent, you can avoid pointless arguments and save a lot of time and money. Given the rising number of divorce applications, mutual consent divorce is one of the best options available. Over contested divorce, divorce by mutual consent has several benefits. Some of the main advantages include:
- Privacy: Divorce by mutual consent is a private process that doesn’t entail court appearances in public or the revealing of private details about one’s assets and finances. This entails that the parties can maintain the privacy of their divorce processes and prevent unwanted attention.
- Cost-effective: Given that a contested divorce requires more time and effort from lawyers and the courts, divorce by mutual consent typically costs less than a contested divorce. The parties can save money on legal fees and court costs, which can be significant in contested divorce cases.
- Less stressful: As the parties can cooperate and communicate freely to reach an agreement, divorce by mutual consent is typically less tense and emotional than a contested divorce. This can reduce the tension and conflict that often arise in contested divorce cases.
- Faster: As the parties do not have to wait for court dates or hearings, divorce by mutual consent can be finalized significantly quicker than a disputed divorce. Without the involvement of the court, they can decide how to divide their assets on their schedule.
- More control: Divorce by mutual consent gives the parties greater control over the terms of their divorce settlement since they can collaborate to create a solution that is individualized and tailored to their own needs and interests. The judge’s final ruling in contested divorce cases might not accurately represent the parties’ circumstances and wishes.
Disadvantages of Divorce by Mutual Consent
While divorce by mutual consent can be a beneficial option for some couples, it is important to weigh the potential disadvantages and risks before making a decision.
- It requires a high level of trust, communication, and cooperation between the spouses, which may not be possible or realistic in some cases.
- In some cases, one spouse may have more bargaining power or influence than the other in negotiating the terms of their divorce settlement. This may result in an agreement that is unfair or unbalanced and does not adequately represent the requirements or interests of both parties.
- Although a divorce by consent can be less expensive than a contested divorce, it also raises the possibility that the parties may not receive the same quality of legal counsel and representation. Without the assistance of a qualified lawyer, spouses risk overlooking crucial financial or legal issues that could have an impact on their future.
- If the parties do not fully understand the terms of their divorce settlement, or if important details are left out or unclear, it can lead to disputes or confusion down the line. This can result in additional legal fees and stress and may require court intervention to resolve.
- It can be challenging to alter or adjust the parameters of an agreement once a divorce settlement has been mutually agreed upon. This can be problematic if the parties’ circumstances or needs change over time, such as if one spouse loses their job or if the cost of living increases.
Conclusion
Divorce by mutual consent is a legal procedure that has various benefits over a disputed divorce, including fewer costs, a speedier divorce process, and reduced emotional stress. It also has some drawbacks, such as the requirement for consensus on important matters and unequal bargaining strength. Before choosing to proceed with a divorce by mutual consent, it is crucial for both parties to carefully evaluate the requirements of the law and possible outcomes. It is important for couples considering divorce by mutual consent to consult with a qualified lawyer to ensure that their rights are protected throughout the process. Ultimately, divorce by mutual consent can provide a way for couples to move on with their lives positively and peacefully.
References
[1] Section 13B, Hindu Marriage Act, 1955 < https://indiankanoon.org/doc/439618/ > last seen on 4/5/2023
[2] S.28(2), Special Marriage Act, 1954 <https://www.indiacode.nic.in/bitstream/123456789/15480/1/special_marriage_act.pdf > last seen on 4/5/2023
[3] S.10(1), Divorce Act, 1869 < https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00033_186904_1523268113865&orderno=10 > last seen on 4/5/2023
[4] Khula under Muslim Law available at < https://lawrato.com/indian-kanoon/divorce-law/what-is-khula-under-muslim-law-2875 > last seen on 5/5/2023
[5]Shahadabi M. Isak vs Abdul Ajij Abdul Latif And Others, Cri. Writ Petn. No. 176 of 1991 (High Court of Bombay, 25/01/1996)
[6] S.32B(1), Parsi Marriage and Divorce Act, 1936 available at <https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00076_1936-03_1535537599943&orderno=34 > last seen on 5/5/2023
[1] Section 13B, Hindu Marriage Act, 1955 < https://indiankanoon.org/doc/439618/ > last seen on 4/5/2023
[2] S.28(2), Special Marriage Act, 1954 <https://www.indiacode.nic.in/bitstream/123456789/15480/1/special_marriage_act.pdf > last seen on 4/5/2023
[3] S.10(1), Divorce Act, 1869 < https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00033_186904_1523268113865&orderno=10 > last seen on 4/5/2023
[4] Khula under Muslim Law available at < https://lawrato.com/indian-kanoon/divorce-law/what-is-khula-under-muslim-law-2875 > last seen on 5/5/2023
[5] Shahadabi M. Isak vs Abdul Ajij Abdul Latif And Others, Cri. Writ Petn. No. 176 of 1991 (High Court of Bombay, 25/01/1996)
[6] S.32B(1), Parsi Marriage and Divorce Act, 1936 available at <https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00076_1936-03_1535537599943&orderno=34 > last seen on 5/5/2023
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