Yes, you heard it right. Now, one can get a divorce without completing the six months period known as ‘cooling-off period’. Before we jump onto the question pertaining to how this can be done, let us clear some basics regarding mutual consent divorce in India.
What is a mutual consent divorce?
Divorce is the legal termination of a marriage and when both- the husband and the wife are willing to part ways amicably without the tedious process of courts, etc. they have an option of filing for divorce under mutual consent divorce. As the name suggests, under this kind of divorce, both the parties need to be willing to terminate the marriage. Under the Hindu Marriage Act, 1955, mutual divorce can be obtained under Section 13-B.
What do you need while filing for a mutual consent divorce?
1. A lawyer: Yes, nothing can be smooth sailing if you do not have an efficient lawyer by your side to guide through the process because even though a mutual consent divorce does not require much of your time or court visits, but it does require two to three court visits. Therefore, you need the best divorce lawyer to help you with the same.
2. One year of marriage: Under the Hindu Marriage Act, 1955, before a petition for divorce can be filed, the parties need to be married for at least a year. If you are newly-weds and have not even touched, let alone cross, the one-year anniversary mark in the marriage, a divorce cannot be filed.
3. One year separation: It is important that you establish that you and your spouse have been separated for a year or more. A divorce under Section 13-B of the Hindu Marriage Act, 1955, clearly states that the couple should not be living as husband and wife for a year or more before they can ask for a divorce. However, there is a catch here. Separation does not necessarily mean that the parties need to establish that they have been residing separately, the parties can show that they have not been living as husband and wife, i.e. no sexual relationship exists, for a period of one year or more even though they have been residing under the same roof.
4. Settlement deed: Even though it is not a necessity to have a settlement deed drafted and notarized, however, it is suggested that you get it made from your lawyer (here point 1 comes to the rescue) and make it a part of your divorce petition. What is a settlement deed, you ask? Well, settlement deed is basically a document outlining all the aspects that persisted during your marriage like joint property, alimony, maintenance, child custody, child maintenance, etc., and it tells what the two of you have decided with respect to the same.
5. Decide on the place of filing the case: This is important. Under the Hindu Marriage Act, 1955, the mutual divorce can be filed in either of the following places:
- Where the marriage was solemnized: It does not imply the place where your marriage is registered. For e.g., if you were married in Panchkula and your marriage was registered in Chandigarh, then you filed for divorce in Panchkula as it is the place where your marriage was solemnized.;
- Where the two of you last resided as husband and wife: It refers to the place wherein you both resided in together;
- Where the wife is currently residing: The petition for mutual divorce can also be filed in the city the wife is living in.
So, the above-mentioned three are the option available for you and your spouse to decide on the jurisdiction.
6. Divorce petition: A divorce petition for mutual divorce should be finely drafted and it must include the following:
- No blame game: The inference drawn from a mutual divorce is that both the parties accept their part in things which brought the marriage to a standstill. Therefore, the divorce petition should not level allegations of any matrimonial offence against either party.
- Passport size pictures of both the parties: The divorce petition needs to be accompanied with passport size picture(s) of both- the husband and the wife.
- Proof of marriage: Proof of marriage can be a wedding card, wedding pictures or a marriage certificate and it is important that proof of marriage is attached with the divorce petition.
- Identity documents: A mutual divorce petition needs to be accompanied with the identity documents of both the parties and if there is a child or children (issue) born out of this marriage then identity document of the child/children need to be attached with the divorce petition.
- Settlement Agreement Deed: A settlement agreement deed makes the transaction under the mutual divorce easier as it lays down the terms and conditions of both the parties during and after the divorce.
How to do away with the six months ‘cooling-off’ period?
When a divorce under mutual consent is filed, the husband and the wife along with the lawyers have to appear before the Court and the parties have to give their statement in the Court whereby they reaffirm the contents of their divorce petition. After the statement is recorded, also known as the ‘first motion’, the Court grants a period of six months known as the ‘cooling-off’ period. This six month period is given in order to give the spouses enough time to revisit their decision and think if they really want to terminate the marriage because once a divorce is an irreversible process.
However, now one can fast forward the process without waiting for six months. The Hon’ble Supreme Court of India in the case of Amardeep Singh versus Harveen Kaur, Civil Appeal No. 11158 of 2017, held that the six months waiting period can be waived off if the following conditions are fulfilled:
- If the spouses have been separated for 18 months or more before the divorce petition was filed;
- If all the efforts of mediation/conciliation and efforts to reunite the spouses have failed and there exists no likelihood of succeeding in the same;
- The spouses have settled all their differences including alimony, custody of the child or any other pending issues between the parties;
- The waiting period will only prolong their agony.
However, the decision of waiving the six months period is upon the discretionary power of the Court as the provision stating the same under the Hindu Marriage Act, 1955, is also discretionary and not mandatory.
Contact the best divorce lawyers in Chandigarh and the tri-city to help you steer through your divorce-related issues and questions.