As a separation agreement is a post- marital agreement. In a separation agreement, the couple agrees to split on their own terms, without the need for legal assistance. As a result, the couple separates without filing a divorce petition or a judicial separation. The most important factor to remember is that separation agreements are signed after entering into a marital relationship. As a result, a married couple agrees on maintenance, child custody, and property distribution through a separation agreement without the need for judicial intervention.A separation agreement is regarded against public policy in India. As a result, courts do not place an emphasis on such an arrangement.
You may also read Divorce Law in India.
Separation Agreement between Husband and Wife in India
Under Indian Law, separation agreement does not hold a good ground with respect to their validity and legality. Indian courts have time and again rejected the concept of the separation agreement between husband and wife. The Hindu Marriage Act has no mention of the Separation agreement. There is no provision which allows or prohibits their usage. Courts have in many cases rejected the validity of the separation agreement. However, while, the judiciary has not yet recognized the validity of separation agreements, the concept is gaining popularity, as a separation agreement, leads to a clean separation, with each and every term clearly captured in writing.
Separation agreement serve the vital role of displaying the intention of the parties. But, Still in India marriage rather than being a contract is a sacred bond and hence the rights and duties are decided by law. A separation agreement may contain the following:
- Names of the parties, which would be the names of the two spouses.
- Grounds on which the parties are separating. Typically broad terms such as mutual discontent or incompatibility may be mentioned.
- Terms governing the separation. For instance, the parties agree not to restrict the other party from doing a certain thing.
- Other standard legal clauses may also be included, including dispute resolution clause, in the event, any party breaches the agreement.
A marriage separation agreement, has the effect of mechanizing the relationship of marriage, by drawing up a contract in express terms to govern the separation. Indian society, does not validate such mechanical dispensation of marriage, and hence, spouses are not very keen to enter into a separation agreement. Moreover, marriage is a dynamic concept and to capture it in watertight compartments of contracts, may not suit the Indian society.
You may also like to read Annulment of Marriage.
Separation Agreement: How is it different from Divorce
A separation agreement differs from a divorce. A divorce is a legal dissolution of marriage. It brings the relationship of being husband and wife to an end. A divorce decree is not the same as a separation agreement. In a separation agreement spouses opt to live apart from each other for a period of time while staying legally married if you engage into such an arrangement. Getting a judgement of separation does not mean that the marriage is dissolved, you will remain married until the court issues a final divorce judgement.
Hence, a separation agreement, just governs the relationship of spouses, for the period of separation. It does not annul or end the marriage. Parties want to enter into a separation agreement, so that both the spouses know the conduct which is permitted and prohibited during the period of separation. Couples with children may benefit from having a separation agreement, as it would also regulate their relationship with their children, during the period of the separation. Those who are victims of domestic abuse, may also benefit from having clear separation agreement drawn up during the period of separation.
You may also read Child Custody Law in India.