Even though the main legal solution to getting separated in India is getting a divorce, this isn’t the easiest process or the best option one can go ahead with. Apart from getting divorced, different separation methods are opted for because of different pros.
In short, the answer to couples can get separated without a divorce is yes, and this article talks about the particular ways and their pros, cons, decree, legality, process, alternatives, working, and more. The article mainly sheds light upon the two different methods of living separately which are Separation Agreement and Judicial Separation, which might sound similar at first, but it is important to understand the difference between them all.
Difference Between Divorce, Separation Agreements, and Judicial Separation
The very basic difference between divorce, separation agreements, and judicial separation is that divorce is the most extreme form of separation which takes place under the guidance of law and is a permanent separation for the couple. In this, all the division of property and child custody takes place on a permanent and more legal basis. Divorces tend to disturb the harmony of the family a lot and hence have long-term effects.
A Separation Agreement on the other hand is a good way to take a break, it does not involve any permanency and lets the couple take a break without hurting the harmony and on some mutual basis and understanding which is mentioned in the agreement.
Judicial Separation is like the midway between divorce and separation agreements, it is a lighter and more temporary separation but under the guidance of law and judicial system.
What is Judicial Separation?
Judicial Separation is the legal method of getting a break in your marriage. Judicial Separation in India is a legal process that helps the couple get separated legally without getting a divorce and affecting the relationship permanently. Judicial separation is only given to couples on specific grounds. Judicial separation is a decree by the Court that allows couples to stay separately for a certain time. It is usually seen as the last resort to divorce and is permitted only by the Court. Judicial separation is like a remedy for marriages that are falling apart but still might have a chance to be fixed, without hurting the overall child and family harmony. It even helps in getting the liberty of making fair and impartial decision-making in related matters.
Grounds for Judicial Separation
The grounds for judicial separation that a couple can seek are,
- When one spouse is physically or mentally harmful to the other;
- When one spouse has deserted the other;
- When one spouse has been repeatedly guilty of adultery or renders him or her unfit to be married;
- When one spouse is subject to a mental disorder;
- When there is a serious danger to the physical or mental health of either spouse.
Benefits and Drawbacks of Judicial Separation
There are some benefits of judicial separation when compared to divorce, like, the spouses can live apart legally without getting a divorce, there is no need for continuous visits and lengthened court work, moreover, the harmony of the family remains better comparatively since the hope stays alive.
Whereas the drawbacks of judicial separation are that the couples end up losing the financial benefits that they have when together which include household finances, insurance, and more.
Working of Judicial Separation
Judicial Separation in India is granted when it is in the best interests of both parties. The judicial separation can be formal, or informal, and depending upon the jurisdiction it is conducted through a court order.
What is Separation Agreement?
Separation agreements from the name itself are understandable. These are agreements that are made to get separated on a mutual understanding and do not involve any judicial intervention, unlike judicial separation. For the separation agreement to come into force there is no requirement of any divorce petition or decree for judicial separation.
These agreements are entered into after the union of marriage has taken place and are also drafted after the solemnization of marriage. Factors like maintenance, property, child custody, etc., are decided upon without any kind of judicial intervention.
Validity of Separation Agreement
In India Separation agreements are considered against public policy and hence the Courts do not give a lot of importance to such agreements. Hence, the separation agreement isn’t a very enforceable agreement under Indian Law.
The Hindu Marriage Act remains silent on the topic of separation agreements, as according to it marriage is not just a contract but a sacrament as well, and the rights and duties of both the husband and wise and not to be merely determined by law, are and hence, neither does it accept or reject the idea of enforceability of the separation agreements.
Though when cases of a Separation agreement are witnessed in India, it is seen that most of them are between couples that have stayed in foreign lands and have adopted the concept of a separation agreement which is mostly a Western concept for Indians.
Working of Separation Agreement
Several different clauses make a separation agreement and put down the layout of the separation without legal and judicial interference. These clauses are,
As the name suggests this is the very basic and introductory clause of the agreement with general information like the name of the parties, the date of the agreement, etc. Further, the clause includes information related to parties including salaries, incomes, occupations, family priorities, bank details, vehicle details, house details, etc.
The maintenance clause is considered to be one o the most important clauses of the agreement and hence should be given a lot of attention while drafting. The clause should include the answers to questions like who will be paying for the maintenance and how much, who is more financially stable, and how the maintenance would work, in terms of the time frame, that is, when will the maintenance be paid and the conditions of when the maintenance terms would change or stop, etc. Further, the clause should not be in opposition to any existing laws or public policies.
Child Custody Clause
Children are the biggest reason why a couple avoids a divorce and prefers staying separately instead, because not just it pulls a heavier emotional toll, but it also puts a heavier toll on a single parent. A separation agreement can help the parents keep better harmony among the children and also divide the responsibilities their ease. The clause includes the details of who will deal with child care even in financial terms.
Property Division Clause
Since property does play a huge role in divisions, the separation agreement needs to have the details of the property division that can be easily made upon mutual understanding without any judicial interference, it is not just better for the parents but for the overall child and family harmony too. The property division should also include details of all the movable and immovable properties along with the vehicles of the family.
The post-retirement clause is mentioned to clarify the fact that both husband and wife will waive off any rights mutually that they have in each other’s pensions. That the retirement accounts will be individually marinated and remain a separate property of the spouse or whoever’s name they do it in.
Full Disclosure Clause
The full disclosure clause is mentioned in all the separation agreements which is a form of undertaking in that neither of the parties has intentionally or unintentionally hidden any important factor related to the assets and liabilities that might be important to the separation agreement. Such a clause helps both parties to stay honest with the agreement.
Pros and Cons of a Separation Agreement
Just like everything else, the separation agreement also has its pros and cons, which are mentioned below,
- The couple gets some time to fix things between them without getting disturbed or blocked by the judicial process of separation called, divorce.
- The separation agreement can easily be transformed into a divorce decree, making the divorce procedure easier if required in the future.
- Health insurance can be shared, and hence cost saving for both parties.
- The process tends to get a little more expensive at times.
- Control over expenses, and insurance can become difficult in the case of joint accounts.
- The agreement can sometimes be emotionally taxing more than relaxing as the agreement can seem like a ticking clock for the marriage to end.
Section 9 of the Hindu Marriage Act, 1955
Section 9 of the Hindu Marriage Act, 1955 talks about the Restitution of Conjugal Rights which states that “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.” As per this Section of the Law, a spouse can knock on the doors of the Court seeking remedy, making separation without divorce wrong as per Hindu Marriage Act, 1955, and since India does not exactly legalize separation agreements, the Section can even be brought up in such cases.
Deciding which is better for whom depends entirely upon the couple and their marital issues. The factors like permanency, property, children, and everything else need to be considered to decide which method of separation best suits the couple and the family. Though most importantly, the couple must be mentally strong. It is advisable to consult with a divorce lawyer to navigate through the legal aspects of the process.