We both want a divorce: mutual consent, step by step

What this is

You and your spouse have decided, together, that the marriage is over. The law has a way to end it without either of you having to prove that the other did something wrong. It is called divorce by mutual consent. You file one petition together, as joint petitioners, and the court grants the divorce when it is satisfied that you both still agree.

Which law applies depends on how and under which religion you married:

• Hindus, Buddhists, Jains and Sikhs — Section 13B of the Hindu Marriage Act, 1955 (the Act covers all four, under Section 2).
• Marriages registered under the Special Marriage Act, 1954, including many inter-faith marriages — Section 28 of that Act.
• Christians — Section 10A of the Divorce Act, 1869. The separation period here is two years, not one.
• Parsis — Section 32B of the Parsi Marriage and Divorce Act, 1936. It is filed as a suit, and the Act does not set the six-month gap described below.
• Muslims — divorce is governed by Muslim personal law, which this guide does not cover. An advocate can explain the options.

The rest of this guide follows the Hindu Marriage Act and the Special Marriage Act, which share the same steps.

The court checks three things before it grants the divorce:

1. You have been living separately for a year or more.
2. You have not been able to live together.
3. You have both agreed that the marriage should be dissolved, and that consent was not obtained by force, fraud or pressure (Hindu Marriage Act, Section 23).

What to do, step by step

Step 1 — Check the two time limits. At least one year must have passed since the date of your marriage (Hindu Marriage Act, Section 14; Special Marriage Act, Section 29). And you must have lived separately for at least one year before you file. Write down the date you began living apart; the petition will state it.

Step 2 — Agree on everything that comes with the divorce. A mutual consent divorce works only if nothing is left to fight over. Sit down, with family or a mediator if that helps, and settle:

• Custody of children — who they live with, and when the other parent sees them. The court keeps the power to make orders about the custody, maintenance and education of minor children (Hindu Marriage Act, Section 26).
• Maintenance or alimony — a monthly amount, or a single one-time payment, or none. Maintenance means money one spouse pays for the other's support. Write the amount and the dates of payment.
• Jewellery, gifts and belongings — including stridhan, the property a woman receives before, at or after her marriage, which is hers.
• Property and joint accounts — a jointly owned flat, loans, a joint bank account, insurance.
• Pending cases — if either of you has filed any case against the other, agree how it will be closed.

Step 3 — Choose the court. The petition goes to the district court, or the Family Court where one has been set up for your area (Family Courts Act, Section 7). Under Section 19 of the Hindu Marriage Act you can file where the marriage took place, where you last lived together, or where the respondent lives, and a wife can also file where she lives now. The Special Marriage Act has the same choices (Section 31). In a joint petition you choose together.

Step 4 — Prepare the joint petition and both affidavits. The petition sets out the marriage (date, place, the law it was under), any children, the date you separated, that you have not been able to live together, that you both agree to the divorce freely, and the terms you have settled. Each of you signs an affidavit — a written statement sworn before an authorised officer — confirming the facts.

Step 5 — The first motion: file and appear. You file the petition and both appear before the court on the date it fixes. The court may try to help you reconcile or settle, as both the Hindu Marriage Act (Section 23) and the Family Courts Act (Section 9) ask it to. It records your statements and fixes the matter for the second motion.

Step 6 — The waiting period. Under Section 13B(2), the second motion can be made no earlier than six months and no later than eighteen months after the date you filed. This time is meant for second thoughts. Courts can waive the six-month wait in some cases; an advocate can tell you whether to ask for it.

Step 7 — The second motion. You both appear again and confirm that you still agree. The court hears you, makes any inquiry it thinks fit, and if satisfied that the marriage took place and the petition is true, it passes a decree of divorce. The marriage ends on the date of the decree. The court gives each of you a copy of the decree free of cost (Hindu Marriage Act, Section 23).

Step 8 — Carry out the settlement. Pay or receive the amounts, return the belongings and transfer the property as agreed. Keep receipts and bank records of every payment.

Timeline and costs

When	What	Who pays
Before filing	One year since the marriage, and one year living separately (two years for Christian marriages)	—
Day of filing	Joint petition and both affidavits, first motion	You: ₹4,999 with eMunshi, all-inclusive — the joint petition and both affidavits, checked by a panel advocate, with a filing guide
Filing + 6 to 18 months	Second motion (the wait can be waived in some cases)	—
On the second motion	Decree of divorce	Court fee, which is set by your state; an advocate's fee if you want one to appear, which they quote first

Documents to keep handy

• Your marriage certificate, or proof of the date and place of the marriage (wedding photographs, an invitation card).
• Proof of identity and address for both of you, and photographs if your court asks for them.
• Proof of the date you began living separately, if you have any — a rent agreement, a change of address, letters.
• Children's names and dates of birth.
• The settlement terms in writing, and the details of any property, account or loan they cover.
• Details of any case either of you has filed against the other.

Mistakes that sink people

• Filing before the year is up. Count one year from the marriage and one year of living separately. A petition filed early can be refused.
• Leaving the settlement vague. "Maintenance as agreed" invites a fight later. Write amounts, dates and who keeps what.
• Paying everything at the first motion. If consent breaks down before the decree, money already paid can be hard to recover. Consider agreeing to pay part at the first motion and the rest at the second.
• Missing the eighteen-month limit. Section 13B allows the second motion only up to eighteen months after filing. Put the date in your calendar the day you file.
• Hiding facts. The court must be satisfied that what the petition says is true. Do not leave out children, an earlier case or the real separation date.

If you do not both agree

Mutual consent needs both of you, from the day you file until the decree. If your spouse will not agree, or you cannot settle custody, maintenance or property, the route is a contested divorce on one of the grounds the law allows. See Contested divorce. If you need support while things are unresolved, see Maintenance. If you are unsure which route fits, a 30-minute call with an independent advocate from our panel starts at ₹999; talk to an advocate.