Litigation & Drafting
Mutual Consent Divorce Lawyer
Mutual consent divorce offers a smoother and more cooperative way to end a marriage where both parties agree to separate. What it needs is a settlement that actually holds: the procedure itself is the simple part.
The ground
What you are actually dealing with
What the court requires?
A joint petition must show that the parties have been living separately for the statutory period: a year under the Hindu Marriage Act, and as prescribed under the other personal laws, that they have not been able to live together, and that they have mutually agreed to dissolve the marriage. The petition is presented jointly, and both parties must be consenting at both motions.
The two motions and the gap between them
The first motion records the petition and the statements of both parties. A period of six months follows before the second motion, in which the parties confirm their consent and the decree is passed. The Supreme Court has held that the six-month period is directory rather than mandatory and can be waived where the parties have already lived apart for the statutory period, all issues are genuinely settled, and reconciliation is not a realistic prospect.
Consent can be withdrawn
Either party can withdraw consent before the second motion, and if they do the petition fails. This is precisely why the settlement terms matter more than the petition: what has been agreed on maintenance, custody and property, and how much of it has already been performed by the time of the second motion, is what keeps a mutual matter mutual.
Our part
How we handle mutual matters
The work is in the agreement, not the filing. Terms that are complete, specific and capable of being enforced are what stop a cooperative separation turning contested at the second motion.
- 01
Settlement terms drafted to cover every head, so nothing is left to be argued later.
- 02
Payment and transfer obligations sequenced against the motions, rather than promised afterwards.
- 03
Waiver of the cooling-off period applied for where the facts genuinely support it.
- 04
Both parties advised to take independent advice, because a settlement signed without it is easier to attack.
Scope
What this engagement covers
- Settlement and separation agreements
- Joint petition drafting and filing
- First motion and recording of statements
- Application for waiver of the cooling-off period
- Second motion and decree
- Custody, maintenance and property terms, and their enforcement
How it runs
The process, stage by stage
No stage carries a promised date. The Registry's queue and the court's list are not ours to commit on your behalf. What we commit to is doing our part of each stage without delay.
- 01
Agree the terms
Maintenance, custody, access, property and any lump sum are settled first, in writing and in detail.
- 02
File jointly
The joint petition is prepared with the settlement annexed and filed before the family court with jurisdiction.
- 03
First motion
Both parties appear and their statements are recorded.
- 04
Interval or waiver
The statutory period runs, or a waiver is applied for where the facts support it.
- 05
Second motion and decree
Consent is confirmed, the decree of divorce by mutual consent is passed, and the settlement terms are performed.
Common questions
Questions we are asked most often
Yes, in appropriate cases. The Supreme Court has held the period to be directory, and waiver is granted where the parties have lived apart for the statutory period, everything is genuinely settled and reconciliation is not realistic. It must be applied for.
Related · Litigation & Drafting