A mutual consent divorce needs a joint petition by both spouses, proof of the marriage, identity and residence documents for each of them, proof that they have been living separately, and a written settlement covering money, property and any children. Under the Hindu Marriage Act, 1955 the joint petition is filed under section 13B; where the couple married under the Special Marriage Act, 1954 the corresponding provision is section 28 of that Act.
Who can file, and where
Both spouses must consent to the divorce, and the consent must continue at the second stage of the case. The petition is filed before the Family Court, constituted under the Family Courts Act, 1984, which has jurisdiction where the marriage was solemnised, where the couple last lived together, where the respondent lives, or where the petitioner lives if the respondent is outside India or cannot be found. The petition is filed jointly, and both parties sign it.
Documents required
The exact list depends on the court and the facts, but the following is the usual set.
- The joint petition, signed by both spouses, setting out the marriage, the separation and the agreed terms.
- Proof of marriage — the marriage certificate or the registration certificate, or the wedding invitation and photographs where registration was not done.
- Proof of the date of separation, and of the period the parties have lived apart.
- Proof of residence within the court's jurisdiction, such as a rent agreement, electricity bill or ration card, with address proof for both parties.
- Identity proof for both spouses — passport, voter identity card or Aadhaar.
- Passport-size photographs of both parties.
- The written settlement, recording the division of assets, the agreed one-time or periodic maintenance, and, where there are children, custody, visitation and their maintenance.
- Income proof of both spouses, such as salary slips or income tax returns, to support the agreed figure.
- Where children are involved, their details and any school or medical records relevant to custody.
- Copies of any earlier litigation or complaint between the parties, so the court has the full picture.
- The vakalatnama authorising the advocate, where one is engaged.
Steps in order
- Settle the terms between the spouses first — money, property and children — and put them in writing, because the case proceeds on that basis.
- Decide the court with jurisdiction and have the joint petition drafted.
- File the petition with the supporting documents.
- Appear at the first motion, where the court records the statements of both parties. The court may refer the couple to counselling or mediation.
- Observe the cooling-off period. Under section 13B of the Hindu Marriage Act, 1955 the second motion may be filed not earlier than six months after the first motion and not later than eighteen months from it. The Supreme Court has held that this waiting period may be waived in appropriate cases.
- File and appear for the second motion, where the court again records the statements of both parties.
- On being satisfied that the consent is free and genuine, the court passes the decree of divorce.
- Apply for a certified copy of the decree, which is needed for records, for remarriage and for correcting names and status.
Time limits and what happens if a stage is missed
The two-motion structure is the heart of the process. If one spouse fails to appear at the first or the second motion without good reason, the petition can be dismissed, and if both fail to pursue it, the matter is dropped. A dismissed petition can in some circumstances be revived, but the parties then have to start again on the appearances. The settlement should also be made part of the order, so that a later default on maintenance or on handing over property can be enforced.
Common mistakes that stall a mutual consent divorce
- No written settlement, leaving money, property or custody to be argued later.
- A settlement that does not deal with the children at all, so the court cannot be satisfied about their welfare.
- Vague terms — “reasonable maintenance” instead of a definite figure and mode of payment.
- Non-appearance by one spouse at a motion, which stalls or dismisses the case.
- Filing in a court that lacks jurisdiction, leading to return of the petition.
- Hiding income or assets, which can reopen the issue of maintenance even after the decree.
- Assuming the decree is automatic once the joint petition is filed; the court must still be satisfied that the consent is genuine.
Frequently asked questions
Can we divorce by mutual consent without appearing in court?
No. Both spouses have to appear in person at the first motion and at the second motion, and the court records their statements. Some courts permit appearance through video conferencing, but the personal statement of each spouse is still required in substance.
Is the six-month waiting period compulsory?
No, not always. The waiting period between the two motions is prescribed by statute, but the Supreme Court has held that it can be waived where the couple has already been separated for long and the settlement is complete. Whether to waive it is for the court to decide on the facts.
What if there are children?
The petition should record custody, visitation and the children's maintenance, and the court will consider the welfare of the child over the wishes of the parents. Where guardianship or custody requires a separate order, a proceeding under the Guardians and Wards Act, 1890 may be needed.
What does it cost to file a mutual consent divorce?
Charging depends on whether the terms are already settled, whether custody or property is disputed, and how many hearings the matter takes. Our published consultation and appearance fees are set out on our pricing page, and a stage-wise fee for the first and second motions can be quoted after reading the papers. For filing, see our mutual consent divorce practice and our contact page; our family law work covers the joint petition, the settlement and the decree.