Process
First Motion and Second Motion in Mutual Divorce, Explained
By Divorce Setu Editorial Team · Updated · 6 min read
Quick answer
The first motion is when both spouses usually appear, the joint petition is filed and their statements are recorded. After a gap the law sets at six to eighteen months, which a court may waive in suitable cases, the second motion follows. Both confirm consent again, and if the court is satisfied, it passes the decree.
A mutual consent divorce under the Hindu Marriage Act happens in two stages, called the first motion and the second motion. Knowing what each one involves takes away most of the anxiety. Details vary by court, so treat this as a general guide and follow your lawyer's instructions. For the whole journey, see our mutual divorce process.
The first motion
This is the stage where you formally ask the court for a divorce by mutual consent. The joint petition is filed, and both spouses usually need to appear before the judge.
- The petition and supporting affidavits are signed, often in front of the court or an authorised officer.
- The judge records the statements of both spouses, usually confirming that they have lived separately, that they cannot live together, and that the consent is free.
- The court may look at the settlement terms on maintenance, custody and property.
- If satisfied, the court passes an order on the first motion and lists the matter for the second motion.
The gap between the motions
The law contemplates a period of six months, up to eighteen months, between the two motions so that the spouses can reconsider. The Supreme Court has held that this period is not a rigid rule and a court may waive it in suitable cases. It is not automatic. Read more in can the 6-month cooling-off period be waived.
The second motion and final hearing
After the gap, both spouses come back, usually together, to confirm that they still want the divorce. The court may record statements again and check that the settlement terms are in place or have been complied with, for example any agreed payment. If the court is satisfied, it passes the decree of divorce.
After the decree
- Your lawyer applies for the certified copy of the decree.
- Check the details, such as names and dates, carefully.
- Keep several certified copies. You may need them for remarriage, name changes, visas, bank or passport records.
What to bring each time
- Original photo ID (Aadhaar, passport or similar).
- Marriage certificate and wedding photographs, if your lawyer asks for them.
- Signed settlement papers and proof of any payments made.
- Passport-size photographs, as the court or lawyer requires.
- Anything else listed in our documents checklist.
Can your lawyer appear on your behalf?
Your lawyer represents you and speaks for you in court, but the judge generally wants to hear each spouse personally, especially at the first and second motions. Courts sometimes allow exceptions, such as video conference for a spouse abroad. Ask your lawyer what your court permits.
What if one spouse skips the second motion?
The consent must continue until the decree. If one spouse does not appear, the court generally cannot pass the decree, and the petition may be dismissed if the matter is not pursued. A spouse is also entitled to withdraw consent before the decree. The law on this is detailed, so see what if my spouse changes their mind. If you cannot attend on a date, tell your lawyer early so the date can be handled properly.
Ready to begin? Start your mutual divorce and a lawyer will walk you through each hearing.
Frequently asked questions
- Do both spouses have to be present at the first motion?
- Usually yes, since the court records both statements. Some courts allow video conference in special cases. Your lawyer will confirm.
- How long is the gap between the first and second motion?
- The law contemplates six months, up to eighteen months. A court can waive the minimum in suitable cases, but this is not guaranteed.
- When do I get the divorce decree?
- After the second motion if the court is satisfied. The certified copy is applied for afterwards and takes some additional time.
- What happens if my spouse does not come to the second motion?
- The court generally needs both spouses' continuing consent, so the decree may not be passed. Speak to your lawyer straight away about the options.