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?
- 1Agree on everything in writing first: alimony, return of jewellery and streedhan, child custody and visits, and withdrawal of other pending cases.
- 2File a joint petition in the family court where you married, where you last lived together, or where the wife now lives.
- 3Appear together for the first motion. Carry proof of marriage, address proof, photos and the signed settlement.
- 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.
- 5Get a certified copy of the decree and update your records, such as passport and bank details.
- 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.