In India, divorce is still considered a social taboo. Couples often tend to neglect things in a relationship and carry on with the same situation, sometimes due to societal and family pressure. In the 21st century when same sex marriage has been declared legal by India, it is important to understand that Divorce is a natural process as much as solemnization of marriage is, and there is no big deal when a couple decides to get a legal divorce and lead their own life. But at the same time, it is equally important to know that there are other ways too through which a couple decides to live separately on mutually agreed terms without actually involving real legalities and lengthy procedures of divorce.
The present couples of this generation are well aware of their rights and duties and therefore also know that there are other ways too through which a couple can legally separate. This article will throw light on how a couple can legally separate themselves. Usually, legal agreements are drafted for such situations, however, the legal enforceability of these agreements is debatable and therefore talking and knowing about these agreements is necessary.
As the name suggests, separation agreements are post-matrimonial agreements where a couple mutually decides to separate their ways without any judicial intervention, which means there is zero interference of court in such agreements. Therefore, without any divorce petition or decree for judicial separation, the couple parts their ways.One of the most significant thing about separation agreements is that they are entered into after the union of marriage takes place. As such agreements are drafted after solemnisation of marriage, these couples decide on the issue of maintenance, property division, and child custody without any type of judicial intervention. However, In India, a separation agreement is considered against public policy. Hence, courts do not give emphasis to such an agreement.
The validity of Separation Agreements in India
In simple language, a separation agreement does not hold a plausible ground regarding validity as well as enforceability under the Indian legal system or the Indian Judiciary. Therefore, the Indian court on various cases has ruled out the option of the separation agreement between a husband and a wife.
It might come to a surprise for the readers, but in India, there exist a system of chutti-chutta, which is a customary form of mutual divorce which is mostly same as separation agreements.
Talking about the Hindu Marriage Act, through which all the Hindu marriages take place is silent on the issue of separation agreements in India. The Act neither encourages nor neglects the enforceability of such agreements in the country.
In a lot of different cases, the court has stated that there is no legal status of separation agreements in India, but this does not mean that it is altogether worthless. The separation agreement paints a picture of the intention of the parties.
Most of the cases in Indian courts are dealing with the issue of separation agreements are cases where Indian couples have been staying for a considerable time in a foreign land. This is due to as this concept of separation agreements is mostly adopted by the western world.
The Hindu law upon the subject of separation agreement still retains its archaic character. As it states that marriage in this respective law is not merely a contract but also a sacrament, and the rights and duties of the married parties are determined solely by the law and are incapable of being varied by their agreement.
Important clauses in a Separation Agreement
These clauses are the introduction part of an agreement. It includes general clauses such as Date of the agreement, Name of husband and wife, property description. These all together will form the part of the introductory clause.
· Information about the parties which includes their salaries, income and occupations.
· If there is any family property, details of it have to be mentioned.
· These clauses generally gathers all the information that is related to everything that the couple owns either individually or together with such as House, bank, car, accounts etc.
It is one of the most important clauses in any agreement. Maintenance clause in a separation agreement should be designed carefully. Things to consider in a maintenance clause are:
· It includes questions like, who will pay the maintenance. It will be the husband who will pay the maintenance or the wife who is financially and equally stable like the husband. The questions will also be related to what would be the maintenance amount depending upon the financial stability of both the husband and the wife. A lot of different questions arises when a maintenance clause is thought of as it includes various things to be taken care of.
· When a maintenance clause is drafted,it is important to be very cautious. It has to be noted that the clause should be in such a way that does not oppose any existing law or public policy.
· This clause will also deal with questions such as the time frame for which the maintenance will be paid, conditions when the maintenance of flow will stop, etc.
One of the biggest reason, a couple never opts for divorce is due to their children. A child in a marriage is a big full stop to people who are seeking for divorce as a child puts a lot of responsibilities on a single parent. However, when a couple is agreeing through the terms of a separation agreement, it is necessary to discuss the clause of Child Custody into it. This clause will discuss the issue related to child care and his/her upliftment. This clause will solve the issue of the financial development of the child.
Both the parties agree that each will retain the vehicles that are right now in the individual’s possession, including but not limited to automobiles, recreational vehicles, and that they will deliver whatever documents are necessary to effectuate and reflect any changes in the record ownership of such vehicles.
The clause on the division of property in a separation agreement divides the personal property of both the husband and wife that has not already been divided between them. This includes a wide range of things. Properties, both movable (vehicle, jewellery, etc.) and immovable property such as a house. Vehicle or retirement benefits are the best examples of property division.
Both the husband and the wife agree to waive any rights each may have in the pension of the other. All other various retirement accounts now individually maintained and held will be and remain the separate property of the spouse in whose name the asset is now held.
Full Disclosure Clause
This clause is normally mentioned in every agreement and is like an undertaking by both the husband and wife that they have not unintentionally or intentionally hidden any important or material facts on debts or any other asset. Such a clause helps both the parties to not hide anything.
Merits of a Separation Agreement
There are some reasons for which a couple opts for a separation agreement and not a divorce. They are:
1. In a separation agreement, the couple gets time to fix things up. A lot of time, fixing up of things won’t happen, and then this couple may go for a legal divorce.
2. Sometimes, an individual does not have health insurance. Therefore, under this, insurance coverage can continue for a spouse who doesn’t have health insurance of his/her own.
3. The couple may be entitled to receive some tax benefits that can help to stabilize the financial picture of an individual before settling for a divorce.
4. A separation agreement can positively affect someone’s ability to qualify for a higher Social Security amount or pension benefits.
5. Any religious or ethical issues about divorce can be addressed and resolved (when possible).
6. When a couple finally decides to get divorced, during that time, a separation agreement can be transformed into a divorce decree, making the actual process of divorce very easy and of mere paperwork.
Couples involved in a separation agreement should carefully weigh the benefits of a legal separation agreement and then opt for it. The couple should talk to legal advisors and then take necessary steps.
Demerits of a Separation Agreement
Although there are a lot of positives to consider when choosing legal separation over a divorce, there are some negative points to consider as well. Couples shouldn’t just enter into a separation because it sounds like the first step to a divorce.
1. There is some cost involved in a legal separation agreement when compared to a divorce. The couple might need to come to an agreement or try it in court to get the court’s order. This whole process can get expensive.
2. Such agreements may become emotionally taxing and leave people in limbo not sure if they are trying to work it out or just biding time to end it.
3. There are chances that Joint account may become susceptible to one spouse using more than agreed upon. A single spouse doesn’t have all the control over joint bank or investment accounts,and therefore this can lead to money disappearing as one spouse decides to plan the final divorce.
4. It is not necessary that all insurance policies extend coverage to a separated spouse. This solely means that if you are doing it for a practical purpose, you may be thwarted in your efforts.
5. At times, there are some state restrictions which prevent a separated spouse from entering into a new relationship. This could make a separated couple more eager to file for a divorce rather than just going for an agreement as it allows an individual to start a new relationship.
This article focuses on both the advantages and disadvantages of a separation agreement. As every coin has two sides, similarly, a separation agreement has both its positive and negative effects to be looked upon.
Are there any alternatives to a separation agreement in India?
After mentioning all the pros and cons of the separation agreement, it becomes important to look for some alternative option too, as a separation agreement might not be a suitable couple for everyone and some of them may be willing to go for some other better option. One of the alternatives to a separation agreement is “Judicial Separation”.
Sometimes, we do tend to get bored due to the same routine every day,and we often seek for a break at some point of time in life. Judicial separation works on the same concept. It is a legal break that is provided to the couples for a specific period of time on valid grounds. Any legally married couple can approach the court for a judicial separation on legal grounds.
1. Judicial separation is a decree by the court which allows the couples to live separately for a certain period. However, in a judicial separation, the couples are still married. Judicial separation is a last resort before the divorce.
2. When comparing a separation agreement to judicial separation, the parties do not need to appear in the court for seeking permission to live separately. While in a judicial separation, it is the court which permits the couple to live separately.
3. Some of the grounds on which a couple can seek divorce are:
· Where either of the party involved in the marriage has deserted the other party in a marriage for more than two years continuously.
· On the grounds of cruelty, where it appears either to the wife or the husband that, it will be harmful or injurious for them to stay with their partner, the court might grant a judicial separation.
· Insanity, adultery, conversion of religion, an incurable form of leprosy, renunciation of the world by entering into a religious order, not heard of being alive for seven years are few more to name.
After reading the article, the readers will be sure that a separation agreement is easy to go solution. But, the important thing to note is that it has some repercussions too. The other party involved in the separation agreement might argue that the same was signed under undue influence, coercion, etc. Therefore, before entering into a separation agreement, it is better to watch out for all these points.