Mutual consent divorce allows spouses who have mutually agreed to separate to seek dissolution of their marriage without a contested trial. It is generally faster and less adversarial than a contested divorce, provided both parties are genuinely aligned on the terms of separation.
Who Needs This Page
This page is relevant if you and your spouse have both agreed that the marriage should end, and you are looking to understand the legal process, the required waiting period, and how settlement terms such as maintenance, custody, and property are typically documented.
Legal Basis — Section 13B HMA and Section 28 SMA
For Hindus, mutual consent divorce is governed by Section 13B of the Hindu Marriage Act, 1955. For couples married under the Special Marriage Act, 1954, the equivalent provision is Section 28 of that Act. Both provisions require the spouses to have lived separately for at least one year and to mutually agree that the marriage should be dissolved.
Eligibility Requirements
Before filing, both spouses need to be able to affirm:
- They have lived separately for a period of at least one year
- They have been unable to live together
- They mutually agree that the marriage should be dissolved
- They have reached a settlement on ancillary matters — typically maintenance or alimony, custody of children if any, and division of property
The Two-Motion Process
Mutual consent divorce proceeds in two stages:
- First motion. Both spouses jointly file the petition before the Family Court, affirming their mutual consent and the terms agreed between them. Statements are recorded before the court at this stage.
- Cooling-off period. The law provides for a gap — commonly six months and up to eighteen months — between the first and second motions, intended to give the couple an opportunity to reconsider.
- Second motion. After the cooling-off period, if both spouses still wish to proceed, they appear again before the court to confirm their consent, after which the court passes the decree of divorce.
The Cooling-Off Period Can Be Waived
The Supreme Court, in Amardeep Singh v. Harveen Kaur, held that the statutory cooling-off period between the first and second motions is not mandatory in every case, and courts may waive it where they are satisfied that certain settled criteria are met — such as the parties having already been separated for a significant period, genuine efforts at reconciliation having failed, and the settlement being final. Whether a waiver is granted is at the court's discretion based on the facts presented, and it should not be assumed as a default outcome.
Drafting the Settlement Deed
A central part of mutual consent divorce is the settlement deed, which records the terms both spouses have agreed to — commonly covering maintenance or a one-time alimony amount, custody and visitation arrangements for children, and division of jointly held property or assets. This document is filed along with the petition and referred to by the court while recording the decree, so it needs to be drafted carefully to avoid ambiguity that could cause disputes later.
Joint Statement and Decree
At both the first and second motion, the court records statements from both spouses confirming that their consent is free and not obtained under coercion or fraud. Once the second motion is recorded and the court is satisfied that all requirements are met, it passes the decree of divorce, formally dissolving the marriage.
Where to File in Lucknow
Mutual consent divorce petitions are filed before the Family Court, Lucknow, established under the Family Courts Act, 1984, and located within the Civil Court complex. Both spouses need to be present for the joint statement at the first motion and again at the second motion, unless the court has specifically permitted an alternative arrangement, such as appearance through video conferencing in appropriate cases.
What Can Go Wrong If Terms Are Not Clearly Drafted
Many disputes after a mutual consent divorce arise not from disagreement about the divorce itself, but from ambiguity in how the settlement terms were recorded — for instance, whether maintenance was meant to be a one-time full and final settlement or an ongoing monthly payment, or how a jointly owned property was actually meant to be divided. Because the settlement deed becomes the reference point if either party later seeks enforcement, it is worth having it reviewed carefully before it is filed, rather than treating it as a formality.
Related Matters
Where children are involved, custody arrangements agreed in the settlement deed should be consistent with the child's welfare, which remains the standard courts apply — see our child custody in Lucknow page. Where maintenance is structured as ongoing payments rather than a one-time settlement, see our maintenance lawyer in Lucknow page for how such claims are typically handled and enforced.
Documents to Bring to the First Consultation
Bringing the marriage certificate, address and identity proof for both spouses, and any prior correspondence about the terms of separation to the first consultation allows the settlement deed and petition to be drafted without unnecessary back-and-forth. Where income or assets are being divided, having a clear list of what is being settled — rather than a general understanding — helps avoid disputes over interpretation later.
Consult Advocate Sourabh Rawat
Advocate Sourabh Rawat assists couples in drafting settlement terms and representing both first and second motion hearings for mutual consent divorce at Family Court Lucknow. Consultations are confidential and available at both chamber locations.