CAN COUPLES GET SEPARATED WITHOUT A DIVORCE by Ritika Mongia@LEXCLIQ

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 onhow 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.

Separation Agreements

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 hasruled 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.

Introductory Clauses

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 haveto 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.

Maintenance Clause 

It is one of the most important clauses in any agreement. Maintenance clause in a separation agreement should be designed carefully.

 

 

 

Ritika mongia

Hello everyone! I Ritika Mongia, pursuing B.A.LLB. from Invertis University, Bareilly.

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