Mutual Consent Divorce

Legal conditions for mutual divorce

• Both spouses must freely agree to the divorce, and that consent must continue until the decree. Either spouse can withdraw consent before the second motion.
• Under Section 13B of the Hindu Marriage Act, 1955, the spouses should have lived separately for at least one year before filing. Living separately can mean not living as husband and wife even under the same roof.
• Under Section 14, a divorce petition normally cannot be filed within one year of the marriage unless the court allows it for exceptional hardship.
• The second motion can be moved after six months and within 18 months of the first motion. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period can be waived in suitable cases.
• Couples married under the Special Marriage Act use Section 28 of that Act, which has a similar process. Christian couples use Section 10A of the Divorce Act, 1869, which needs two years of separation.
• The petition is filed in the Family Court where the marriage was solemnised, where the couple last lived together, or where the respondent spouse lives.

What affects the total cost

• Court fee for a divorce petition in Delhi is small; most of the cost is in drafting, affidavits and court appearances.
• The independent advocate's fee is agreed directly and depends on the court and how many hearings are needed. Mara Vakil does not set or display it.
• Alimony, maintenance and return of jewellery or stridhan are part of the settlement between the spouses and are not legal fees.
• An application to waive the six-month waiting period needs extra drafting and may need an extra hearing.
• If criminal cases such as a complaint under the dowry or cruelty provisions are pending, quashing them in the High Court is a separate proceeding with its own cost.

How long it takes

Drafting the joint petition and settlement usually takes one to two weeks once terms are agreed. The first motion is presented and both spouses record statements before the Family Court; the court may refer them to mediation first. After this, the second motion is moved after six months, or earlier if the court waives the waiting period. Many divorces finish in six to eighteen months. Delays happen when a spouse misses a hearing, the settlement amount is not ready, court dates are far apart, or one spouse changes their mind before the second motion.

Common mistakes to avoid

• Signing a petition before every settlement term is clear, including alimony, custody, visitation, jewellery and joint property or loans.
• Paying the full settlement amount at the first motion. It is common to split payments between the first and second motion.
• Forgetting to deal with pending criminal or maintenance cases in the settlement, leaving them running after the divorce.
• Not keeping proof of separation, such as separate rent agreements or addresses, when a waiver of the waiting period is planned.
• Missing the 18-month outer limit for moving the second motion after the first motion.

What you get at the end

At the end the Family Court passes a decree of divorce by mutual consent, and you can apply for a certified copy. Use it to update your marital status in records, change surname back if you wish, update bank nominations, insurance and passport, and as proof if you remarry. Under the Hindu Marriage Act, remarriage is generally lawful once the decree is passed and no appeal is pending.

In Delhi NCR

• Delhi's Family Courts sit in the district court complexes such as Saket, Tis Hazari, Karkardooma, Rohini, Dwarka and Patiala House. The court is chosen by where the marriage took place or where the couple lived.
• Delhi Family Courts often refer couples to the court's mediation centre before or during the first motion, and settlements are recorded there.
• Couples in Gurugram or Faridabad file before the Family Courts in Haryana, and those in Noida or Ghaziabad before Family Courts in Uttar Pradesh.
• If one spouse lives abroad, courts may allow appearance by video conference or through a power of attorney for some steps. The advocate checks the local court's practice.
• For couples outside Delhi NCR, the team can guide you online on the documents and the local procedure where possible.