What is an uncontested divorce or divorce by mutual consent?

Uncontested divorce or divorce by mutual consent is a form of divorce where both husband and wife agree to dissolve their marriage and there is no disagreement as to the same. It is the simplest, easiest and fastest way to dissolve a marriage. The essentials to move Court to obtain decree of divorce under this kind are: Mutual consent of husband and wife to dissolve marriage; Mutual consent as to the custody of the child; Mutual consent in regards to the amount of maintenance or alimony.

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When can a petition for divorce by mutual consent be filed?

A petition for divorce by mutual consent can be filed any time after one year from the date of solemnisation of marriage if husband and wife mutually agree to dissolution of marriage by the top divorce lawyers in India.  

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What is the minimum separation period required before obtaining divorce by mutual consent in India?

The minimum separation period required before obtaining mutually consented divorce is 1 year.

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Where can a petition for divorce by mutual consent be filed?

A petition for divorce by mutual consent can be filed at either of the following places: The place where the marriage ceremony was conducted; The place where the husband and wife last resided together; The place where the wife resides currently. The place of filing the petition is important as it determines the jurisdiction of the Court. It is advised to consult experienced divorce lawyers when determining questions of jurisdiction as to where to file a petition.

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What is the fee estimate and charges of lawyer to obtain a mutually consented divorce?

The fee estimate varies from case to case. However, it can be done at minimal possible rates if you consult a good lawyer in your area. The primary cost that you will incur will be the fees of the lawyer, maintenance (if any) and court fees. Care and caution before hiring a divorce lawyer should be adopted to ensure that the process flows smoothly. It is possible for you to find a good divorce lawyer online.

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Which law governs divorce by mutual consent?

Divorce with mutual consent is governed by laws in accordance with the religion of the contesting parties: Hindus (includes Sikhs, Jains, Buddhist) are governed by Section 13(b) of Hindu Marriage Act; Divorce under Islam is governed by Shariat (personal laws) and Dissolution of Marriage Act, 1939; Christians are governed by the Indian Christian Marriage Act, 1872; and Special Marriage Act, 1954 is a secular act covering all parties irrespective of their religion.

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What are the mandatory conditions required before filing a petition for mutual divorce?

To get an uncontested divorce, 3 conditions required to be fulfilled are: Husband and wife should be living separately for a period of one year or more; During this period of separation, they have not been able to live as husband and wife; They have mutually agreed to obtain divorce. Once these conditions are satisfied, the petition for mutual divorce can be filed by an experienced divorce advocate.

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Who gets the custody of child in divorce by mutual consent?

The good part about a divorce with mutual consent is that the child is not dragged into fights as to the right of custody. The question of the custody of child is mutually decided by the husband and wife. Both husband and wife are considered to be competent to obtain custody of the child and decide mutually. The concept of joint custody has been prevalent in recent times where the physical custody of the child is with one parent and the legal custody is with both parents. The custody of the child is decided keeping in mind the child’s age, wishes, interests and health and the competent parent’s ability to raise the child.

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How is maintenance and alimony decided in divorce by mutual consent?

Maintenance and alimony in divorce by mutual agreement is consented to and agreed by both husband and wife mutually. The amount is decided by a mutual agreement keeping in mind the social status, maintenance of wife, maintenance and education expenses of the child, wife’s income and employment status, income of the husband and ability of wife to maintain herself.

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How much time does it take to obtain divorce by mutual consent?

The minimum time to obtain a decree of divorce is 1 month, if you hire your advocate wisely who can convince the court to set-off the cooling period.   Otherwise, it can range from 6 months to 18 months from the date of hearing of the case, provided the petition is not withdrawn by either of the party. It is pertinent to note that such divorce can only be obtained after 1 year from the date of marriage. Court provides both the parties a minimum time period of 6 months and a maximum time period of 18 months to make up their minds, cool off and reach a decision as to if they still want a divorce. This time is also called “cooling off period”. The best divorce attorneys in India can guide you better.

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What is the procedure for obtaining divorce by mutual consent?

The procedure for obtaining divorce that is mutually consented is: Petition to be filed under respective act or law (S/13b for Hindu Marriage Act etc.) in the Court of competent jurisdiction. Petition to be filed mutually in the Court with the intention to obtain divorce at any time after one year from the date of marriage. Both the parties need to prove that they have been living separately for a period of one year or more before the presentation of such petition. The three conditions should be satisfied before moving the petition. The petition is filed in the way of an affidavit stating the mutual consent as to dissolution of marriage and other agreed clauses regarding child custody, maintenance and alimony Statements of both the parties are thereafter recorded. A cooling period of minimum 6 months and maximum 18 months is provided to the husband and wife if they wish to change their mind and reconcile. During the cooling period, either of the party has the right to withdraw the petition. If withdrawn, no decree of divorce is passed. If such petition is not withdrawn, the parties are summoned at a fixed date, where they consent and confirm the intention to separate or divorce. Decree of divorce is granted by the Court.

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What is the cooling off period?

Cooling off period is the time given by the Court to the husband and wife after filing of the petition to obtain uncontested divorce to make up their minds and to decide if they want to continue with the divorce proceedings. This period is intentionally given to the parties by the Court to maintain the sanctity of marriages and to prevent any divorce which was initiated on grounds of a heated argument or dispute. This cooling off period can be waived off by the Court if it finds it appropriate in accordance with the scenario of the case in hand.

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What is the first and second motion under proceedings of mutual divorce in India?

First motion under proceedings of mutual divorce is the filing of the petition in a Court of competent jurisdiction where the husband and wife mutually consent to dissolution of marriage. This is the first step in obtaining divorce by mutual consent. Second motion under the proceedings is when the husband and wife confirm to the intention of divorce after the cooling off period. This is the final conveyance of intention of the parties to put an end to the marital bond.

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Can any one party withdraw the petition for mutual divorce?

Yes, one party to the proceeding can withdraw the petition for mutual divorce through an experienced divorce lawyer at any time within the time period of 6 months given by the Court as cooling-off period. Withdrawal can be done by filing of application in the Court of law where the petition to obtain divorce was initially filed. In such situations, the Court does not pass any divorce decree as the mutual consent which formed as a basis of the proceeding does not exist anymore between the husband and wife.

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What can the other party do if petition for mutual divorce is withdrawn by one party?

The other party is left helpless when the petition for uncontested divorce is withdrawn by one party. The only remedy available is to file a petition for a normal divorce which can be contested in a Court of law on any of the other grounds (like cruelty, desertion, conversion, renunciation) except mutual consent.

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Can mutual consent divorce be challenged in Court?

Divorce by mutual consent is final and binding and thus cannot be challenged in any Court. The basis of such divorce is mutual consent and since both parties consented to the divorce, they cannot challenge the decision. The decree can only be challenged if the consent to mutual divorce was obtained by force, fraud, coercion or undue influence. The same is a very difficult task as the Court provides for a cooling-off period and if no objection was raised then, the validity of such objection after passing off decree requires a heavy degree of proof. Challenging the decree can only be on these grounds with the help of a good divorce attorney.

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When can the divorced partners remarry?

The divorced persons can remarry only when the decision of the Court is final and binding. A decision becomes final and binding when: If an appeal has not been preferred, then after the lapse of limitation period to file an appeal against the decision; If an appeal has been preferred, after the disposal of appeal. Thus, you can remarry after 90 days from the date of judgment if no appeal has been preferred.

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