Mutual Divorce - FAQ

Frequently Asked Questions (FAQ) – Mutual Consent Divorce in Chennai

A. General Divorce FAQs in Chennai

1. What is divorce?

Divorce is the legal dissolution of a valid marriage by a competent court. In India, the procedure and grounds depend on the personal law applicable to the parties. For example, under the Hindu Marriage Act, 1955, divorce may be sought either by mutual consent under Section 13B or on statutory grounds under Section 13.

2. What are the two main types of divorce?

Broadly, divorce proceedings can be:

1. Mutual Consent Divorce – both spouses agree that the marriage should be dissolved and agree on the important issues arising from the separation.

2. Contested Divorce – one spouse seeks divorce and the other spouse does not agree, or the parties dispute the allegations, financial issues, custody, maintenance or other consequential matters.

An experienced family-law advocate should first determine whether the matter can appropriately proceed by consent or whether contested proceedings are necessary.

3. Which court handles divorce cases in Chennai?

Matrimonial proceedings are generally dealt with by the Family Court or the court having appropriate matrimonial jurisdiction. The Family Courts Act gives Family Courts jurisdiction over proceedings relating to dissolution of marriage, maintenance, custody and other matrimonial matters.

The exact court in Chennai depends upon the applicable jurisdictional provisions and the facts of the case.

B. Mutual Consent Divorce FAQs

4. What is mutual consent divorce?

Mutual consent divorce is a divorce in which both spouses jointly agree that they cannot continue the marital relationship and mutually agree to dissolve the marriage.

Under Section 13B(1) of the Hindu Marriage Act, the parties must have been living separately for at least one year, must have been unable to live together, and must mutually agree that the marriage should be dissolved.

5. Do both husband and wife have to agree for mutual consent divorce?

Yes.

Mutual consent is fundamental to this type of divorce. Both parties must voluntarily agree to the divorce. The court must also be satisfied that consent has not been obtained by force, fraud or undue influence.

6. Can one spouse obtain a mutual consent divorce without the other spouse?

No. A genuine mutual consent divorce requires the continuing consent of both parties.

If one spouse refuses to participate or withdraws consent, the matter may not proceed as a mutual consent divorce. Depending upon the circumstances, the other spouse may have to consider an appropriate contested divorce proceeding.

7. How long must husband and wife live separately before filing mutual consent divorce?

For a Hindu marriage governed by Section 13B, the statutory requirement is that the parties have been living separately for one year or more, have been unable to live together, and have mutually agreed to dissolve the marriage.

"Living separately" does not necessarily mean that the spouses must have completely different physical addresses in every situation; the legal assessment depends on the circumstances and evidence.

8. Is there a six-month waiting period in mutual consent divorce?

Section 13B(2) ordinarily contemplates that the second motion should be made not earlier than six months after presentation of the first petition and not later than eighteen months, subject to the statutory requirements.

However, the Supreme Court has held in Amardeep Singh v. Harveen Kaur that the six-month period can, in appropriate cases, be waived by the court. The waiver is not an automatic entitlement; the circumstances of the particular case have to be considered.

9. Can the six-month period be waived in Chennai?

It may be possible in an appropriate case.

The Supreme Court's decision in Amardeep Singh v. Harveen Kaur (2017) explains the circumstances in which the statutory cooling-off period may be relaxed. The application for waiver should be based on the facts and circumstances of the particular matrimonial dispute.

Therefore, an advocate should examine the period of separation, reconciliation efforts, settlement of issues, children, pending litigation and other relevant circumstances before advising whether a waiver application is appropriate.

10. Is mutual consent divorce always completed within six months?

Not necessarily.

The six-month period is a statutory framework under Section 13B(2), but the actual duration can vary depending on the court, filing requirements, settlement issues, appearance of parties, documents and whether a waiver is sought and granted.

11. What is the first motion in mutual consent divorce?

The first motion is the initial joint petition presented by both spouses seeking dissolution of marriage by mutual consent.

The petition generally sets out matters such as:

• Details of marriage

• Period of separation

• Inability to live together

• Mutual decision to dissolve the marriage

• Details concerning children

• Maintenance/alimony settlement

• Property and financial settlement

• Return of articles, if applicable

• Other agreed terms

12. What is the second motion?

The second motion is the subsequent stage at which both parties confirm their continuing consent to the divorce.

Under Section 13B(2), the motion is ordinarily made after the statutory six-month period and within eighteen months from the first petition, unless the petition is withdrawn or the court deals with the matter according to applicable law.

13. Can the parties withdraw mutual consent divorce?

Yes.

Mutual consent must continue until the divorce decree is passed. If either party withdraws consent before the decree, the court cannot simply treat the matter as an uncontested mutual consent divorce.

14. What happens if the husband agrees initially but later refuses?

The legal position depends upon the stage of the proceedings and the circumstances.

If the husband withdraws consent before the mutual consent divorce decree, the wife generally cannot compel him to continue with a mutual consent petition. She may, however, consider an appropriate contested divorce proceeding if there are legally sustainable grounds.

The same principle applies if the wife withdraws consent.

C. Settlement FAQs in Mutual Consent Divorce

15. What issues should be settled before filing mutual consent divorce?

A comprehensive settlement should ordinarily address, where applicable:

• Permanent alimony

• Maintenance

• Child custody

• Child visitation/access

• Child education and medical expenses

• Jewellery and articles

• Household belongings

• Property issues

• Bank accounts and financial claims

• Pending civil cases

• Criminal complaints/proceedings, where legally permissible

• Withdrawal or disposal of pending matrimonial proceedings

• Future claims between the spouses

A carefully drafted settlement can reduce the possibility of future disputes.

16. Can maintenance be settled in mutual consent divorce?

Yes, maintenance/alimony can be an important part of the settlement.

The parties may agree on the amount, manner and timing of payment, subject to the court's consideration of the settlement and applicable law.

17. Can child custody be settled in mutual consent divorce?

Yes. Parents can agree upon custody and visitation arrangements, but the welfare and best interests of the child remain important considerations for the court.

The agreement should ideally specify:

• Physical custody

• Visitation

• Weekend/holiday access

• School holidays

• Festivals

• Communication/video calls

• Education expenses

• Medical expenses

• Travel arrangements

18. Can property disputes be settled along with mutual consent divorce?

Yes, parties may incorporate appropriate property-related arrangements into their settlement. However, the nature of the property, ownership rights, existing documents and applicable property law must be examined separately.

19. Can all matrimonial cases be settled along with mutual consent divorce?

Many disputes may be capable of settlement, but not every proceeding can simply be withdrawn or compromised without considering the applicable law and procedural requirements.

An advocate should examine each pending case separately before drafting settlement terms.

D. Documents for Mutual Consent Divorce

20. What documents are generally required?

Depending on the case, documents may include:

• Marriage certificate or proof of marriage

• Aadhaar/identity documents

• Address proof

• Photographs

• Details of children

• Proof concerning separation, where relevant

• Previous court orders

• Details of pending cases

• Settlement agreement/MOU, where appropriate

• Financial/property documents where relevant

The exact list may vary according to the facts and the court's filing requirements.

21. Is a marriage certificate compulsory?

A marriage certificate is useful evidence, but the absence of a certificate does not necessarily mean that divorce proceedings are impossible. Other legally acceptable evidence of marriage may be relevant depending on the applicable personal law and circumstances.

22. Do both parties have to appear before the court?

Generally, the court requires the parties to participate in the proceedings and verify their consent. Whether personal appearance can be dispensed with or dealt with differently depends upon the circumstances and the court's orders.