• Mutually-consented divorce

My wife and I have been going through martial problems for quite a few years and now we both have decided to part away amicably via mutually-consented divorce. We have been married for 12 years under the Hindu Marriage Act and have a son of 6 years from this marriage. We are living in separate places (the child lives with the mom). Though she is working, her income is much less than mine. I have no idea how the mutually-consented divorce works under the Hindu Marriage Act and so I have the following queries:

1. How to start the process and what are the main steps ?
2. Do we have to appear in court ?
3. How much time does it take from the day of filing ?
4. Is there any pre-condition like husband and wife have to stay separate for certain time before the divorce can be filed ?
5. How much alimony will I have to pay and for how long ?
6. How much child support will I have to pay and for how long ?
7. I have a couple of properties, one purchased before marriage and the other after marriage, but both are in my name only. What does the law say regarding properties owned by husband ?
8. What does the law say regarding other assets of husband, like bank accounts, car etc. that are acquired during marriage ?
9. Any other suggestion/advice ?
Asked 10 months ago in Family Law from United States
Religion: Hindu
1) mutual consent divorce takes 6 months 

2) consent terms Form integral part of petition wherein issues relating to wife streedhan , maintenance ,custody of children are incorporated 

3) both parties have to appear in court . Mandatory cooling period of 6 months 

4) both parties have to stay separate for one year before filing for divorce by mutual consent 

5) wife had no share in properties owned by her husband 

6) if bank account only in husband name wife has no share
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
section 13 B HMA provides divorce by mutual consent. Both parties to the marriage present their consent of divorce and settlement  regarding maintenance etc before the court on the first hearing of case. Court frames issues and prepare decree under section 89 CPC on the pleadings of parties, their consent and settlement deed. 

Decree passed on consent of parties is not appealable. whole proceeding takes hardly 1 year. You can make provision regarding your child in settlement deed. one year mandatory separation of parties is not applicable under section 13 B. there is only bar i.e. petition under 13 B cannot bring within 1 year of marriage.   

you should talk with your wife and prepare a settlement deed thereupon file petition under 13 B 
Shivendra Pratap Singh
Advocate, Lucknow
2792 Answers
41 Consultations
4.9 on 5.0
1. You will have to file a joint petition i.e. Mutual Consent Divorce Petition. Thereafter there will be few counselling sessions. 

2.You will have to appear before the court at the time of filing the petition and thereafter during counselling. Infact in all stages you will have to be physically present. 

3. From the date of filing its six months. 

4. Yes, husband and wife should live separately for minimum one year before the date of filing the petition. 

5. It depends how much the wife claims. You can surely negotiate. 

6. You will have to pay child's monthly expenses like his schooling, for his food, clothing and other miscellaneous expenses 

7. In mutual consent it depends if she wants to claim anything from your property. 

8. She can claim upto 50% of the property acquired by you before and after marriage. 

9. Mutual Consent Divorce is the best way to get rid of your spouse. its faster and cheapest. 

Regds, 

Adv. Payal  
Payal Arora
Advocate, Pune
333 Answers
7 Consultations
4.1 on 5.0
1. The process would start by engaging a lawyer who would prepare the divorce papers including the MOU to be executed. 

2. Both the parties have to personally appear in the court along with their lawyer unless they execute a POA in favour of a relative to authorize him to appear.

3. 6 months is what it takes to conclude from filing day.

4. In mutual divorce the spouses alone get to decide the issues of alimony and child custody. The court will simply put its seal of approval on their agreement. It is open to the wife to renounce her right to alimony or the husband to renounce his right to custody and visitation.

5. Under the present law the wife has no share in the properties, movable and immovable, of her husband irrespective of whether purchased before or after marriage. 

Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
1. Mutual Consent Divorce is the kind of divorce which is applied for jointly by both the husband and wife mutually consenting to terminate the matrimonial relationship without blaming or accusing each other. In this case the terms of the MCD are decided mutually. In some cases, there is no exchange of anything and both just want to end the relationship without any condition. Negotiate with your wife to know whether she will give you MCD or not and if yes, will she demand anything or not. You can bargain on the amount claimed by her,

2.& 3. After filing the said MCD petition you shall have to appear on the 2nd motion date being after 6 & 1/2 months and on that day both of you shall have to appear personally before the Judge and say that both of you still want divorce,

4. Botrh of them are required to stay separately for at least one year to be eligible to file the said MCD. If it is mentioned in the petition that just from the next date of marriage both are separated, the will accept that and grant the decree of divorce,

5. & 6. This answer has been given above. You shall have to pay the amount agreed to be paid by your wife and the Court will not decide that in MCD case,

7.& 8. Wife has no claim on the properties of husband during his lifetime. In case of his demise, intestate, the wife will get the share of the property with her mother in law, and all children,

9. Negotiate with your wife and settle the terms for the said MCD for which both of you shall have to file a joint MCD petition.    

Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. How to start the process and what are the main steps ?
This is the easiest form of divorce and not eligible for appeal too. The process is very simple, a joint petition seeking divorce on the grounds of mutual consent shall be applied before the jurisdictional family court, the jurisdiction will be the place of marriage, or the place where you both last resided together or the place where she currently resides.  A single lawyer for both the petitioner s shall be enough.



2. Do we have to appear in court ?
Yes, both have to appear before court twice, one for the first time while filing the case and another at the time of pronouncement of dissolution of your marriage by a decree of divorce at the second motion i.e., after six months of first motion.



3. How much time does it take from the day of filing ?
Six months


4. Is there any pre-condition like husband and wife have to stay separate for certain time before the divorce can be filed ?
One year separation between them shall be sufficient, i.e., they should have lived separately away from each other at least one year prior to the date of filing this case.




5. How much alimony will I have to pay and for how long ?
Alimony aspect will be decided on various factors, i.e., at par with your status, after calculating her salary etc the quantum  alimony shall be decided however it becomes her duty to prove your income on that, but this factor can be decided between you both before filing the case. This alimony shall continue till her life time or upto the time of  her remarriage 




6. How much child support will I have to pay and for how long ?
Child support will depend on the mutual agreement between you both because you may decide to have some FD too on your child or you may undertake to take case of the child's education and future expenses.


7. I have a couple of properties, one purchased before marriage and the other after marriage, but both are in my name only. What does the law say regarding properties owned by husband ?
As per Indian laws, the properties lying on your name shall be your own property, she cannot claim a share in it


8. What does the law say regarding other assets of husband, like bank accounts, car etc. that are acquired during marriage ?
The answer for 7 above suits for this too

9. Any other suggestion/advice ?
Better make one time settlement in respect of alimony amount to her as well as to the son.  This may avoid litigation in future. A memorandum of understanding covering all issues of concern may be reduced to writing before filing the joint petition for mutual consent divorce. 
T Kalaiselvan
Advocate, Vellore
14166 Answers
128 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:

1. How to start the process and what are the main steps ?
Opinion: If both of you are ready for Mutual Consent Divorce then execute a MOU with her with all the terms and conditions as both of you want.

2. Do we have to appear in court ?
Opinion: Yes, you and your wife both have to appear before the court for recording the statement, either personally or through power of attorney Holder.
 
3. How much time does it take from the day of filing ?
Opinion: Minimum six months.

4. Is there any pre-condition like husband and wife have to stay separate for certain time before the divorce can be filed ?
Opinion: Minimum one year separation is mandatory.

5. How much alimony will I have to pay and for how long ?
Opinion: its depend on your MOU which was executed with her.

6. How much child support will I have to pay and for how long ?
Opinion: As above.

7. I have a couple of properties, one purchased before marriage and the other after marriage, but both are in my name only. What does the law say regarding properties owned by husband ?
Opinion: you are the absolute owner of those properties and she has no right except right to residence till the divorce.

8. What does the law say regarding other assets of husband, like bank accounts, car etc. that are acquired during marriage ?
Opinion: As above.

9. Any other suggestion/advice ?
Opinion: execution of MOU is the main base of your queries so execute MOU with all terms and conditions as per your queries or apprehension.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1. How to start the process and what are the main steps ?
==You have to file a petition before the District court/Family court under section 13-B of Hindu marriage Act. By the time of filing the petition, there should be one year separation between you.  One more condition is you should wait for 6 months more from the date of petition. 

2. Do we have to appear in court ?
==Yes, at least twice, first time at the time of presentation of the petition and second time at the time of filing your evidence and Judgement i.e. after completion of six months period.  

3. How much time does it take from the day of filing ?
==Six months + two months mics works, total 8 months from the date of petition. 

4. Is there any pre-condition like husband and wife have to stay separate for certain time before the divorce can be filed ?
==One year separation by the date of filing the petition. 

5. How much alimony will I have to pay and for how long ?
==Normally, the husband has to pay alimony approximately 1/3 of his salary.  But there is a provision of permanent alimony (i.e. one time lumpsum amount).  This amount depends upon mutual understanding.  Normally it will range between two lakhs to 10 lakhs or even more depending upon the status of the husband.  If the wife is employee or education, the permanent alimony will be very less.  

6. How much child support will I have to pay and for how long ?
==Permanent alimony which is explained in point No.5 includes child maintenance also. 

7. I have a couple of properties, one purchased before marriage and the other after marriage, but both are in my name only. What does the law say regarding properties owned by husband ?
==In the same court, there will be a Memorandum of understanding, where you can mention about the above properties saying that she has no right on your properties movable or immovable. This is full and final settlement. 

8. What does the law say regarding other assets of husband, like bank accounts, car etc. that are acquired during marriage ?
==Same as point No.7.

9. Any other suggestion/advice ?
==If you want visitation rights of your child, you have to mention the same in the Memorandum of understanding.  You can visit/see your child and can spend for one hour or as ordered by the Honble Court.  Or If you want custody of child, you have to mention the same in the Memorandum of understanding.  

If there is dispute regarding child custody and both wife and husband claims custody, a separate case will go in the same court, but however you will get divorce.  Untill the final result of the child custody petition, the court temporarily allots the custody to the person who can look welfare of the child and grants visitation rights to the other person. 

Ravinder Pasula
Advocate, Hyderabad
316 Answers
68 Consultations
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