The Possibility of Living Separated Without A Divorce Under Indian Law

In India, many couples facing marital discord often wonder about the possibility of living separately without a divorce as an alternative to formally ending their marriage. Living separately without divorce can be an effective solution for those who wish to part ways due to irreconcilable differences but do not want to go through the legal complexities of a divorce. Under Indian law, while divorce remains the primary legal method for dissolving a marriage, there are avenues for couples to live apart through judicial separation or informal separation agreements. Judicial separation, available under various statutes such as the Hindu Marriage Act, 1955, the Indian Divorce Act, 1869, and the Special Marriage Act, 1954, allows a court to officially acknowledge the separation while keeping the marriage legally intact. This process involves filing a petition in court, where the judge grants a legal decree of separation that outlines terms related to alimony, child custody, and other marital responsibilities. This legal recognition of separation facilitates a formal arrangement for living separately without divorce but does not terminate the marital status of the parties involved. Alternatively, couples may choose to live apart without a formal decree, which involves practical arrangements for separation but lacks the legal framework provided by judicial separation. This informal separation does not affect the legal status of the marriage and does not provide legal remedies for issues such as maintenance or custody unless addressed through other legal proceedings. Thus, living separately without divorce offers a temporary or permanent solution for couples who need to live apart for personal reasons or to evaluate their relationship without pursuing a full divorce. It is crucial for couples considering this option to consult with a legal expert to understand their rights and obligations under Indian law, ensuring that the separation arrangement aligns with their legal and personal needs.

In our nation, the idea and concept of divorce is still not accepted widely. Spouses ignore their bad mental, emotional, financial, physical and social situations and then to carry on with their marriages because of the fear as to how they might be seen in the society if they get a divorce. The idea of divorce by mutual consent has to be accepted in our nation and that it is a normal and common process which can be done by anyone anytime. However, it has to be known to everyone that divorce is not the only option and there are other methods which will save the couple the time and money spent for an actual divorce.

Couples now a days are fully aware of all the rights and responsibilities available to them in case of a bad marriage. Nonetheless they will need the guidance and aid from the finest divorce lawyers in business. Adv. Bindu Dubey is one of the top divorce lawyers in Navi Mumbai, Mumbai. She will provide consultation for the couples and help them with the separation process.

What is judicial separation in India?

One main way as to how the spouses can live separately is by the SEPARATION AGREEMENTS. Same as the meaning of the name this is when after the marriage the couple decide to live separately and this will not involve any legal formalities. This simply means no court proceedings, no petitions, no decrees etc. which make the divorce process tiresome and painful. However, with respect to the properties, maintenance etc the couple will consult, discuss and decide as to who will get what.

In our nation, the separation process is considered as something against the public process, therefore these agreements are in a state of confusion in the court of law in our nation. Courts have hence rejected many separations agreement cases. However, in the Indian law there exists the concept of ‘Chutti – Chutta’ which is somewhat similar to the separation agreement as it is a customary mutual separation. Under the Hindu Marriage Act of India, the separation agreements are neither allowed nor disallowed. Hindu Law does not talk about the separation agreements because according to the religion marriages are very sacred and not just a contract for formality. Therefore, they cannot be broken or put in pause whenever anyone wants to.

What is a decree of judicial separation?

There are many important clauses and rules that has to be checked and followed with respect to the Separation Agreements.

Number one, it is the introductory clauses which contains all the basic details such as the names of the spouses, the date of agreement etc. This will also hold the details about the salary, properties, houses owned, bank accounts etc of both the spouses.

Number two is the Maintenance clause. This is considered as one of the most important clauses in any agreement. This discusses as to who will pay the maintenance after the separation with respect to which partner is stable. This clause must be filed and drafted with the utmost caution and stability like this should not contradict any public policy.

Number three is the clause relating to child custody. It is because of this issue the spouses tend to not go for divorce i.e., for the welfare of their children. However, in separation agreements it is necessary to discuss about the custody of child. This will deal with the financial, medical and educational needs of the child and which of the either spouse will take care of all the needs. Next comes the clauses for vehicles, property and the post – retirement perks.

Finally, it is the full dis – closure clause which is a form of undertaking where the husband and wife with full faith promise that they have nothing to hide more than what has been revealed such as debts, properties, assets etc.

What are the advantages to a legal separation agreement?

Separation agreement gives the spouse the time to work things out. Fixing things can even heal the repaired marriage but at times they do not and couple eventually go for divorce. If either of the spouse does not have health insurance then they will be allowed to continue with the coverage of the other spouse but this will not be possible in a divorce. In the separation agreements the spouses will be allowed to share the tax money spent or earned which might help them financially. Issues related to religion or ethics can be sorted out in this duration of separation. If the spouses choose to move forward with divorce, then this separation agreement will be changed into a divorce decree.

What are the disadvantages to a legal separation agreement?

Many a times this separation agreement gets expensive. These kinds of agreements will drain the emotional health of the parties. Separation agreements are not fully accepted in India and therefore many state courts will reject the petition. Also, many a times the spouses will not be allowed to enter into any new relationship and if they do it then it becomes an offence. But when we compare the disadvantages of divorce and separation agreement it can be seen that separation agreements are much better.

Is legal separation better than divorce?

If we ask the question as to if there are any other alternatives, yes there is this option called the JUDICIAL SEPARATION. This is not a complete separation agreement but an agreement where the couple can be legally separated for a specific period of time. Here, the couples are still considered as married people but want to take time staying separately for a while. Here in this kind of separation the couple need not appear before the court asking for permission.

Definitely on all grounds a separation or judicial separation agreement is much better than the process of actual divorce. It saves times, energy, money etc for the parties. However, even after being not satisfied with the separation the couples can chose to opt for a divorce. Having the finest lawyer by the side will definitely aid the parties. Contact Adv. Bindu Dubey for legal consultation and to know more about Separation agreements.