CAN A COUPLE BE SEPARATED BEFORE FILING FOR A DIVORCE IN INDIA?

Introduction

Divorce is one of life’s most severe storms for any couple. Further, if the divorce is disputed in India, it can be a lengthy and costly process. Even couples who agree to divorce must show that they have been separated for at minimum a year before the courts might consider their case.

Divorce rules in India, like other personal problems, are linked to religion. The Hindu Marriage Act of 1955 regulates Hindus, Buddhists, Sikhs, and Jains, whereas the Dissolution of Muslim Marriages Act of 1939 regulates Muslims, the Parsi Marriage and Divorce Act of 1936 regulates Parsis, and the Indian Divorce Act of 1869 regulates Christians. The Special Marriage Act of 1956 covers all civil and inter-community marriages. Divorce law is effective in some cases but not in others.[1]

Before ending the husband-and-wife relationship, one spouse might start the process of giving the other spouse a legal notice of divorce. There are various forms of divorce petitions. In India, the divorce process, divorce regulations, and divorce laws are all a little difficult.

This generation’s couples are fully informed of their rights and responsibilities, and hence are aware that there are other ways for a couple to legally split. This article will explain how a couple can legally split from one another. Legal agreements are usually drafted for such scenarios; however, the legal enforceability of these agreements is debatable, thus it is vital to discuss and understand them.

Separation agreements

Separation agreements, as the name implies, are post-matrimonial agreements in which a couple willingly decides to split their ways without judicial involvement, implying that the court has no role in such agreements.[2] As a result, the couple separates without filing a divorce petition or receiving a judicial separation decree. One of the most important aspects of separation agreements is that they are signed after the marriage has taken place.

These spouses decide on the subject of maintenance, property division, and child custody without the need for judicial intervention because these agreements are established after the marriage is solemnized.

The legality of separation agreements in India[3]

In plain English, a separation agreement within the Indian legal system or the Indian judiciary does not maintain a credible footing in terms of legitimacy and enforceability. As a result, the Indian court has ruled out the idea of a separation agreement[4] between a husband and a wife in several circumstances.

It may surprise readers to learn that in India, there is a system known as chutti-chutta,[5] which is a traditional kind of consensual divorce that is similar to separation agreements. When it comes to Hindu marriages, the Hindu Marriage Act, which regulates all Hindu marriages in India, remains quiet on the subject of separation agreements.

The court has said in a number of cases[6] that separation agreements have no legal status in India, but this does not mean that they are completely worthless. The parties’ intentions are expressed in the separation agreement. The majority of cases in Indian courts involving separation agreements involve Indian couples who have been living in a foreign country for a long period. This is because the western world has mostly adopted the concept of separation agreements. The Hindu law on the subject of a separation agreement is still somewhat antiquated. According to the law, marriage is not only a contract but also a sacrament, and the rights and obligations of the married couples are set only by the law and cannot be changed by their agreement.

Important clauses in a separation agreement[7]

Introductory Clause

These terms are found at the beginning of a contract. It contains general terms such as the date of the agreement, the names of the husband and wife, and the description of the property. The introductory clause will be made up of all of these elements. Salary, income, and vocations of the parties are among the details provided. If there is any family property, it must be described in full. These clauses collect information about everything the couple has, whether individually or jointly, such as a house, a bank, a car, accounts, and so on.

Maintenance Clause

This is one of the most crucial provisions of any contract. A separation agreement’s maintenance clause should be properly drafted.

Key takeaways for the Maintenance clause

  • It asks questions such as who will pay for the maintenance. The husband or the wife, if she is monetarily and financially stable like the husband, will pay the maintenance. The inquiries will also concern the amount of maintenance to be paid, which will be determined by the financial stability of both the husband and the wife. When a maintenance provision is considered, a slew of concerns arises since it covers a wide range of responsibilities.
  • It is critical to exercise extreme caution while drafting a maintenance clause. It is important to remember that the clause should not conflict with any current legislation or public policy.
  • This provision will also address issues such as the length of time for which the maintenance will be paid, the circumstances under which the flow maintenance will be stopped, and so on.

Child custody

One of the most important reasons why a couple never divorces is because of their children. A child in a marriage puts a halt to divorce petitioners because a child places a lot of duties on a single parent. When a couple is negotiating the terms of a separation agreement, however, it is vital to negotiate the Child Custody clause. This clause will address the subject of child care and its improvement. This clause will address the subject of the child’s financial growth.

Property division

In a separation agreement, the property division clause divides the personal property of both the husband and wife that has not already been divided. This can refer to a variety of things. Property, both moveable (cars, jewellery, etc.) and immovable (houses, for example). The best instances of property division are vehicle or retirement benefits.

Full disclosure clause

This paragraph is usually included in every agreement and is essentially an agreement by both the husband and wife that they have not hidden any crucial or relevant facts about debts or any other asset, either unintentionally or purposefully. Such a clause aids both parties in not concealing anything.

Alternatives to a separation agreement

After discussing all of the benefits and drawbacks of a separation agreement, it’s vital to consider other options, as a separation agreement may not be the best solution for everyone, and some people may be willing to try something else. Judicial Separation is one of the alternatives to a separation agreement.

Judicial separation is the period preceding the divorce. Before the divorce proceedings may begin, the court requires a time of separation. The judicial separation period is one year under all personal laws. The Indian Divorce Act of 1869 stipulates a two-year judicial separation time.[8]

Conclusion

A separation agreement is a simple and straightforward option. However, it is crucial to highlight that it has some consequences. The opposite party to the separation agreement could contend that it was signed under duress, coercion, or other forms of duress. As a result, it’s a good idea to keep an eye on all of these things before signing a separation agreement.

Author(s) Name: Shubhanshu Pandey (Prof. Rajendra Singh University)

References:

[1] THE HINDU MARRIAGE ACT, 1955, ‘Divorce’ <https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf> accessed 17 August 2021

[2]THE HINDU MARRIAGE ACT, 1955, ‘Judicial Separation’ <https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf> accessed 22 August 2021

[3] ‘Judicial Separation’, <https://www.vakilno1.com/legalviews/judicial-separation-divorce-india.html> accessed   22 August 2021

[4] Amit Anand Choudhary, Marriage can be dissolved if it breaks down irretrievably <https://timesofindia.indiatimes.com/india/marriage-can-be-dissolved-if-it-breaks-down-irretrievably-sc/articleshow/71512612.cms> accessed   22 August 2021

[5] Allahabad High Court, ‘Parikshat Son Of Sri Kali Deen vs State Of U.P. And Siya Devi on December, 2006, https://indiankanoon.org/docfragment/197609/?formInput=customary%20divorce%20%20doctypes%3A%20allahabad accessed 22 August 2021

[6] Delhi High Court, Swantantra Ved Sahni vs Santosh Kumari on 22 March, 1988 <https://indiankanoon.org/doc/480590/> accessed   22 August 2021

[7] UK-IA-FAM30, The contents of a separation agreement: what should be in one and why’, December 2020, <https://www.netlawman.co.uk/ia/contents-separation-agreement> accessed 18 August 2021

[8] DISSOLUTION OF MARRIAGE, <https://legislative.gov.in/sites/default/files/A1869-4.pdf > accessed 22 August 2021

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