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Family Laws

We both agree to separate. How does divorce by mutual consent work?

Simple answer

If you have lived separately for at least one year and both agree, you can file a joint petition in the family court. The court usually gives a 6-month waiting period before the final hearing, which it can waive in some cases. Christian couples need two years of separation.

Real-life examples

Priya and Karan, both Hindus, have lived apart for 14 months. They agree on alimony and their son's custody, and file a joint petition. Six months after the first hearing, they confirm their consent at the second hearing and get the divorce decree.

Gurpreet and Harman, a Sikh couple, have lived apart for three years. Mediation failed and they have settled every issue. They ask the family court to waive the six-month wait. The court may agree, because waiting would only prolong their pain.

What should you do?

  1. 1Agree on everything in writing first: alimony, return of jewellery and streedhan, child custody and visits, and withdrawal of other pending cases.
  2. 2File a joint petition in the family court where you married, where you last lived together, or where the wife now lives.
  3. 3Appear together for the first motion. Carry proof of marriage, address proof, photos and the signed settlement.
  4. 4Return for the second motion after six months and within 18 months of filing. If you have already lived apart for over 18 months, ask your lawyer about a waiver.
  5. 5Get a certified copy of the decree and update your records, such as passport and bank details.
  6. 6Can't afford a lawyer? Call NALSA at 15100 for free legal aid.

Exceptions & limits

  • Either spouse can withdraw consent before the final decree. The court then cannot grant a mutual divorce, and the other spouse would have to file a contested case on legal grounds.
  • Muslim couples can also end a marriage by mutual agreement (mubaraat) or khula under Muslim personal law. Parsi couples need one year apart, and Christian couples two years.

Official legal reference

  • Hindu Marriage Act, 1955 — Section 13B

    Hindus, Sikhs, Jains and Buddhists: joint divorce petition after one year apart; second motion between 6 and 18 months.

  • Special Marriage Act, 1954 — Section 28

    The same mutual-consent process for marriages under the Special Marriage Act, including court and interfaith marriages.

  • Divorce Act, 1869 — Section 10A

    Christians: joint petition after two years apart; second motion between 6 and 18 months.

  • Parsi Marriage and Divorce Act, 1936 — Section 32B

    Parsis: divorce by mutual consent after living apart for one year or more.

  • Amardeep Singh v. Harveen Kaur (2017)

    Supreme Court: the six-month waiting period is not compulsory; the court may waive it in suitable cases.

Where to get help

NALSA Free Legal Aid

Free lawyer and legal advice for eligible people through Legal Services Authorities.

Source & status

Applies to
Varies by state
In Uttarakhand, the state's Uniform Civil Code (in force since 27 January 2025) now governs divorce for most residents, and Goa has its own family law. Check the local family court's process.
Law in force since
27 May 1976
Legal review
Draft — awaiting lawyer review

Educational information, not legal advice for your case. Exact facts and the law that applies matter — speak to a lawyer before acting.

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