The present youth of India are well aware of their rights and duties. Keeping oneself on the safer side of the law is the demand of the hour. No matter the agreement is commercial or personal in nature, the ultimate motto is to play safe. The same goes with an institution of marriage. Matrimonial agreements such as prenuptial agreements, separation agreements are slowly setting its base in India. Nonetheless, there is much doubt on the enforceability of these marital agreements. Hence, it becomes necessary for us to go deeper into such agreements.

What is a separation agreement

• A Separation Agreement is a post-matrimonial agreement. In a separation agreement, the couple mutually decides to separate their way without the help of any judicial intervention. Therefore, without any divorce petition or decree for judicial separation, the couple part their ways.
• The most noteworthy point is, separation agreements is entered after getting into the union of marriage.
• Consequently, in a separation agreement married couple decides on the issue of maintenance, child custody, property division without any judicial intervention.
• In India, a separation agreement is considered against public policy. Hence, courts do not give emphasis to such agreement.

Validity of separation agreement in India

Simply put, a separation agreement does not hold a plausible ground regarding validity as well as enforceability under Indian legal system. The Indian Courts on various instances have ruled out the concept of the separation agreement between husband and wife.

• You might get surprised to know that, In India, there exist customs such as chutti-chutta, which is a customary form of mutual divorce. the same as a separation agreement.
• Hindu Marriage Act is silent on the issue of a separation agreement in India, The act neither allows nor negates the enforceability of a separation agreement.
• In multiple cases, the courts have stated that a separation agreement has no legal sanctity. But this does not mean that it is altogether worthless. The separation agreement paints a picture of intention of the parties.
• A significant percentage of cases in Indian court dealing with the issue of a separation agreement are cases where the Indian couples have lived for a considerable time in a foreign land.
• Most part of the western world follows the concept of a separation agreement.
• The Hindu law upon the subject of separation agreement still retains its archaic character. Marriage in that 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.

Concluding on the point of the validity of a separation agreement, the agreement is not legally binding. The court might use the clauses of a separation agreement for figuring out the intention of the couple seeking a divorce.

Clauses in a separation agreement

Introductory clauses

General clauses such as Date of the agreement, Name of husband and wife, property description. This will be the part of an introductory clause of the agreement.

• Information about the parties’ occupations and incomes, and
• details about the family property.
• This includes everything the couple owns either individually or together. House, car, bank accounts, etc.

Maintenance clause

Most important clause. Maintenance clause in a separation agreement should be designed carefully. Things to consider in a maintenance clause are,

• Who will be liable to pay the maintenance? It will be the husband who will provide the maintenance, or the wife is equally bound to pay it.
• Be cautious while drafting the maintenance clause, or perhaps any other clause in a separation agreement. The clause should not go against any existing law on maintenance or any public policy.
• The clause will address issues such as, what will be the amount of maintenance payable? Till how long will the maintenance be paid? Conditions when the flow of maintenance would stop?

Child custody

This clause will decide the issue relating to child care. The party who will keep the child or children after separation. This clause will solve the issue of financial upliftment of the child.

Division of property

The clause on division of property in a separation agreement divides the personal property of the parties that has not already been divided between them. This includes a wide range of things. Properties, both movable (vehicle, jewelry, etc.) and immovable property such as a house. Take the example of vehicle or retirement benefits.

Vehicle

The parties agree that each will retain the vehicles that are currently in their individual possession, including but not limited to automobiles, recreational vehicles, and that they will execute whatever documents are necessary to effectuate and reflect any changes in the record ownership of such vehicles.

Clause on Post retirement benefits

The couple agrees to waive any rights that each may have in the pension of the other. All other retirement accounts now individually held and maintained will be and remain the separate property of the spouse in whose name the asset is now held.

Full disclosure clause

An undertaking by both the husband and wife that they have not intentionally or unintentionally hidden any material facts on debts or any other asset. The clause on ‘Full-disclosure’ is a safeguard which exempts the parties to hide anything.

A sample template of a separation agreement between husband and wife in India is attached below.

Alternative to Separation Agreements in India

By now it is clear that the chances of enforceability of a separation agreement are seldom possible. When a piece of paper has no value in the eyes of law then why even to think of such agreement? This question might pop into your mind. Therefore, answering this is our duty.

A separation agreement lacks enforceability in the court of law. But this does not mean that its value is degraded all at once. As explained above, the court might find a separation agreement handy for carving the intention of the party. There are alternatives to a separation agreement in India. But these alternatives are not replica or mirror image of a separation agreement. Here are few alternatives to separation agreement.

Judicial Separation.

I need a break! How many times have you thought of it while in a relationship? The concept of Judicial separation is a legal break provided by the court on valid grounds. The court, when being approached by any of the married couple grants a judicial separation.

1. Judicial separation is an order by the court which permits the couples to live separately for a certain period. While in a judicial separation, the couples are still married. Judicial separation is a last resort before the divorce.
2. In a separation agreement, 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. Here are the grounds on which one can seek judicial separation.

• Where the husband or the wife 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 husband or the wife that, it will be harmful or injurious for them to stay with their partner, the court might grant a judicial separation.
• Adultery, Conversion of religion, Insanity, 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.

Divorce by mutual consent

Divorce by mutual consent is a step further. The main motto of getting into a separation agreement is mostly non-compatibility between the couple. The last resort to get out of the marital bond without being caught into the procedure of court is divorce by mutual consent.

Here is a few know-how on divorce by mutual consent.

Procedure to be followed for filing a petition for divorce by mutual consent-

• Both the parties need to file together with a petition seeking a divorce before the District Court.
• Before the filing of the petition, married couple should make sure that they are living separately for one year or more. After the petition is allowed, parties are required for filing of the statement.

If any party is not available, any such family member of such party may file the statement on his behalf. Once this is done, ‘First Motion’ is established.

• Couple seeking divorce by mutual consent will have to give the reason why they are not able to live together and mention in the petition that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
• Court after a period of 6 months and not more than 18 months (cooling-off period) will give a date for listening to the parties.

To know more about divorce by mutual consent, click the following link iPleaders

Repercussions of a separation agreement

A Separation Agreement is easy to go solution. Beware, it has its repercussions too! There might be situations where a separation agreement can be used as a ground for cruelty. And Cruelty is in itself a ground for divorce.

The other party in a marriage might contend that the separation agreement was signed by them under undue influence or coercion. Therefore, watch out for these future repercussions too if you are planning to sign a separation agreement.

Here is a sample template of a separation agreement

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

As a result of disputes and serious differences, they have separated and are now living separate and apart, and wish to continue living apart. 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, Husband and Wife agree as follows:

1. LIVING SEPARATE. 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 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: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

5. 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)___________________________________________________________________

6. 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 wife is earning, what is the amount she earns. Social status of the couple.)

o 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 others financial statement, are familiar with and understand the others financial statement, had any questions satisfactorily answered, and are satisfied that full and complete financial disclosure has been made by the other.

10.WAIVER OF ESTATE. Both parties to this agreement agree to waive any and all 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)

 

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References

[1988 SCCOnline Del 48 Swatantra Ved Shahni v. Santosh Kumari]

Mulla Hindu law 22nd edition.

The Constitution of India, MP JAIN