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This article is written by Gurpreet Singh, a student at the Faculty of Law, Delhi University. The article takes one through agreements regarding the settlement of marriage.

Introduction   

There is a famous saying in India that “Marriages are made in heaven” and ‘divorce in hell” This is one of the reasons why the divorce rate in India is among the lowest in the world.   This article attempts to break away from the traditional misconceptions relating to divorce and explains an alternative mechanism that is gaining momentum among the youth in the country and certain tips on how to go about it.

Definition

In common parlance, divorce refers to the severance of ties between duly wedded husband and wife.  In India divorce is governed by principles of  Hindu law, Muslim law, and other principles such as mutual consent that are prevalent across the globe. 

On the other hand, a marital settlement agreement is an agreement between husband and wife for separation without the involvement of cumbersome court procedures and the administration. Although Marital settlement agreements are not legally enforceable in India, they can aid the Court while dealing with divorce.

Traditional methods of Divorce under the Hindu Marriage Act 

Available to both the partners 

  1. Adultery– Any of the partner after the solemnization of marriage has had sexual intercourse with any other person.
  2. Cruelty – Any of the partners has treated the other with cruelty. Cruelty can be either physical or mental or both.
  3. Desertion – Any of the partners has deserted the other for a continuous period of two years.
  4. Conversion – Any of the partners has converted to another religion.
  5. Unsoundness of mind – Any of the partners is of unsound mind and the other cannot under reasonably be expected to share the same roof.
  6. Renouncement of World– Any of the partners has renounced the world.
  7. Not Available – Any of the partners has not been heard for a continuous period of seven years. Persons who are expected to know the whereabouts are also clueless.

Available to only the wife 

  1. That the husband is found to be guilty of rape, sodomy, or bestiality.

Traditional methods of divorce under Muslim Law

Available to the Husband 

1. Talaq ul Sunnat  – It is further subdivided into the following:

  • Ahsan – The husband has to make an announcement in a single sentence when the wife is considered to be in a pure state (i.e free from the menstrual cycle) The husband will abstain from sexual activity when the wife is going through iddat (a period when Muslim wife has to go through chastity after dissolution).
  • Hasan – The husband has to pronounce divorce successively three times when the wife is in the stage of purity. Another condition to be fulfilled is no sexual activity during the period of 3 successive stages of purity.

2. Talaq ul biddat  – The Husband has to pronounce talaq talaq talaq and the dissolution is complete. Although the Supreme Court in Shayra Bano v. Union of India has abolished the practice by declaring it unconstitutional.

Available to the wife 

According to Section 2 of the dissolution to the Muslim Marriage Act, 1939 following grounds of divorce are available to the women:

  1. Desertion – The whereabouts of the husband are not known continuously for 4 years. 
  2. Maintenance – That the husband has not provided maintenance for 2 years.
  3. Prison – That the husband is serving a sentence for more than a period of 7 years. 
  4. Neglect – That the husband has not performed his obligations towards the wife for 3 years.
  5. Unsound Mind – That the husband is of unsound mind for 2 years. 
  6. Impotence – That the husband was impotent at the time of marriage and has not been cured of it.

Now you must  have given  it a thought that these practices of divorce practiced are incompetent for the 21st century, keeping up with cultural advancements, certain provisions  were introduced to ease the process of divorce  that are described below:

  1. Divorce by Mutual Agreement under Hindu Law – Mutual agreement refers to a process where both husband and wife agree to be separated according to their accepted terms and conditions. According to section 13 of the Hindu Marriage Act, 1955   Both the parties to the marriage need to present a petition before the court of competent jurisdiction It is considered as the most peaceful way of getting separated.
  2. Divorce by  Mutual Agreement Under Muslim Law -This can be further subdivided into:
  • Khula – It means to lay down before the law. The husband lays down his rights over his wife. It refers to an arrangement between husband and wife to end their marriage in place of consideration. The wife pays compensation to the husband out of her property. Certain requirements that need to be fulfilled under this form of divorce are that there must be an offer from the wife, secondly, the offer must be accepted by the husband, and thirdly that the iddat period must be duly observed.
  • Mubarat – It signifies the discharge of marital obligations by mutual agreement. The most important aspect is that the discharge of obligations is done mutually. Offer can be made by any party, acceptance renders the divorce irrevocable and the observance of the iddat period is necessary.

Now moving on from traditional methods of being separated, here is the overview of  new methods of separation i.e. separation agreements. 

Definition

A separation agreement is an agreement between husband and wife who with their consent agrees to get separated on their terms and conditions. They draw out an agreement that bifurcates their assets incomes and of course custody of children wherever applicable. The following clauses could be inculcated in the agreement:

    1. General Clauses- This includes information regarding personal details of the husband and wife which includes their occupation, place of residence, and description of properties. It can also include the details of all the assets the husband and wife own conjunctively. 
    2. Maintenance Clause – This clause is one of the most important clauses to be drafted in a separation agreement.it should be concise and contain details of the particulars such as who will pay maintenance and to whom, Whether payment would be every month or in a lump sum, In case of default what penalty would be imposed? 
    3. Child Custody – if there are children, out of consummation of marriage the custody of the children should be fairly decided. Visitation rights for the parent who is staying away from the children and who will contribute to the expenses towards the care of the child.
    4. Division of property- Property is the root of all the problems. Therefore this clause must contain the details of the property and their division in agreement with both the parties. 
    5. Division of assets – Assets collectively owned by the parties also need to be divided in proportions agreeable to both the parties. 
    6. Post Retirement benefits – Financial assets, including post-retirement benefits, need one’s attention while preparing agreements on settlement. 
    7. Full disclosure Clause – Couples while preparing an agreement must draft a full disclosure agreement that boils down to the meaning that both parties will intentionally or unintentionally not hide anything from the other.

Draft of a separation agreement 

This Agreement is entered into  _______________________________, 20________, by and between ____________________________________________ and ___________________________________________. The parties were married on _____________________________, _______.

As a result of disturbance to the marital ties, they have separated and are now living separate from one another, and continue to do so. They intend to settle by this agreement their marital matters, including child custody, child support, division of property and debts, and their rights to alimony. For these reasons and in consideration of the mutual promises contained in this Agreement, both  Husband and Wife agree as follows:

  1. Separation  – Husband and Wife will live separate and apart from each other as if they were single and unmarried.
  2. NO HARASSMENT OR INTERFERENCE- Neither party will in any manner harass, annoy, or interfere with the other.
  3. CHILD Care and Support 
  • The ________________ shall pay the sum of INR _______________ per _______________ as support and maintenance for the minor child (name) in the physical custody of the other parent.
  • The _______________ shall maintain health insurance coverage for the minor child (name) as long as such insurance is available at a reasonable group rate.
  • Other: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

4. DIVISION OF PROPERTY

  • The Husband transfers to the Wife as her sole and separate property: ______(Mention the details of the property, both movable and immovable)____________________________________________ ___________________________________________________________________
  •  The Wife transfers to the Husband as his sole and separate property: (Mention the details of the property, both movable and immovable)___________________________________________________________________

5. DIVISION OF DEBTS The Husband shall pay, and will not at any time hold the Wife responsible for, the following debts: ______________________________________________________________________

The Wife shall pay, and will not at any time hold the Husband responsible for, the following debts: ______________________________________________________________________ _____________________________________________________________________

7. ALIMONY (This clause varies. It depends on whether the husband is earning or not. If the wife is earning, what  amount she earns, Social status of the couple, cordiality between the coupe, etc )

  •  Husband shall pay to the wife shall pay alimony in the sum of INR _____________ per ______________, for a period of _______________________; or until the Wife dies or remarries, whichever occurs first.

8. EFFECT OF DIVORCE OR DISSOLUTION OF MARRIAGE. In the event of a divorce or dissolution of marriage, this Separation Agreement shall, if the court approves, take its effect.

9. FINANCIAL DISCLOSURE. The parties have revealed to each other full financial information regarding their net worth, assets, holdings, income, and liabilities; not only by their discussions with each other but also through copies of their current financial statements, copies of which are attached hereto as Exhibits A and B. Both parties acknowledge that they had sufficient time to review the other financial statement, are familiar with and understand the other financial statement, had any questions satisfactorily answered, and are satisfied that complete financial disclosure has been made by the other.

10. WAIVER OF ESTATE. Both parties to this agreement agree to waive any right to the estate of the other, including ____________.  Each party shall be allowed to pass his or her property freely by will.

11. INDEPENDENT REPRESENTATION BY COUNSEL. Each party has the right to representation by independent counsel. Each party fully understands his or her rights and considers the terms of this agreement to be fair and reasonable.

12. EXECUTION OF NECESSARY INSTRUMENTS. The parties will execute and deliver any other instruments and documents that may be necessary and convenient to carry out all of the terms of this Agreement.

13. ENTIRE AGREEMENT. This instrument, including any attached exhibits, constitutes the entire agreement of the parties. No representations or promises have been made except those that are set out in this Agreement. This agreement may not be modified or terminated except in writing signed by the parties.

14. BINDING EFFECT. This agreement shall be binding upon the parties, and upon their heirs, executors, personal representatives, administrators, successors, and assigns.

_____________________                                                     ______________________

Wife                                                                                          Husband

(Name, Signature)                                                                     (Name, Signature)

 Tips for negotiating a settlement agreement

  • Focus on your Interests – While negotiating for a settlement agreement focus on what’s essential for you and your spouse, don’t be adamant about your positions. For example, you prefer monthly maintenance of Rs. 25000 and your spouse is not ready to spare more than Rs. 15000, this will create aggression and stalemate while negotiating. Rather, it’s better to focus on your interests, your interest in demanding Rs. 25000 is that you can maintain yourself, your spouse’s interest might be to manage his expenses and stay afloat.  
  • Avoid Hard Bargain – Hard bargain refers to my way or the high way, do not adopt this approach while negotiating settlement agreements, these might lead to unnecessary tensions and end in a no show. 
  • Remember you have shared your livesWhile negotiating do not forget that you two were a couple and have shared a common household so you might not do yourself good pissing off on the other, If you have children you will hamper your visitation rights while satisfying your ego.
  • Recognize the other side’s needs and interests Always do try to assess the other side’s needs and wants. This will benefit you in bargaining and come to a better-settled agreement. 
  • Be TransparentTransparency leads to trust formation. Make sure you have disclosed all the relevant information and have not hidden anything substantial information that leads to mistrust. If the other party is insisting on certain documents, you must consider sharing them with the other side. 
  • Keep a Check on your EmotionsNegotiations during separation agreements are often tricky and one might lose hold of their calm. Always try to maintain a poker face, so that the other side isn’t able to play with your emotions and receive a better agreement.

Conclusion 

Although marriage settlement agreements are not legally enforceable in India, they might aid you in the grant of divorce by the Judicial machinery. With the young generation looking for a less cumbersome way to get out of wedlock, maybe in the distant future marital settlement agreements would be enforceable in our country.

References


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