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Judicial Separation Over Divorce

We often hear people using the word ‘Divorced’ to mention the husband and wife not living together. But, are all partners separated from each other and living separately called divorced? If in all the cases where husband and wife do not want to live together considered “Divorce” then what is Judicial Separation for? Is it because of the lack of understanding of the difference between Judicial Separation and Divorce that we see more number of a petition filed for Divorce and not for Judicial Separation or the parties filing the petition do not want to give another chance to their marriage one more time?

While the terms Judicial Separation and Divorce may both sound like a last chapter of the marriage the former’s true objective is different. If for some reason you are skeptical about the future of your relationship with your spouse and decide in haste to break up the bond with the tool of Divorce, beware, you may break the relationship once for all. Hence, it is important to know and understand the other legal tools available for a separation and the difference between them. As a lawyer too, it is important to advise the clients about the option of legal separation before outrightly filing the divorce petition. Further, judicial separation has some perks of its own!

Separating the Separation

Firstly to break the bubble of confusion between the various terms which have all got ‘separation’ in them, Judicial Separation, Legal Separation is the same whereas Trail Separation and Separation may in some cases mean informal voluntary separation between the couple.
Remember those celebrity couples who create a buzz by posting on social media about their decision to go separate ways without knocking on the doors of the court? That’s an informal separation where the couples take their time off to give themselves a chance to evaluate the marriage and reconcile if they feel the need.
If the couple appears before the court, decided to be separated and live separately from each other following the court’s order that’s judicial separation or legal separation. However, living separately does not mean they cannot live under the same roof. If the couple is separated themselves and does not want to contemplate reconciliation as a legal step, they can file for divorce.

Divorce – The end of a marriage; Judicial Separation – Precedence to divorce;

  • As intimidating as it may sound divorce can put a full stop to the story of your marriage. But judicial separation gives the couple a chance to live separately while remaining married and to re-think their decision.
  • Not that judicial separation is an unlimited term – if the couple remains judicially separated for 5 years or more, then, their marriage is considered to be dissolved.
  • To break the bond of marriage the couple has to be married at least for a year from the date of filing the divorce petition. There is no limitation on the tenure of marriage to be legally separated.
  • Once you are divorced you have no marital obligations with your spouse. They become your Ex! During the time of judicial separation, the couple will have to follow the court’s order that lays out each spouse’s rights and obligations.
  • The same issues addressed in divorce are addressed in judicial separation such as child custody, child support, and partition of marital assets and debts, etc.
  • Divorce is a one-step process. When a couple files the petition for divorce and upon examination of the various grounds if the court grants the divorce then the couple is done and dusted. However judicial separation requires the couple to appear in front of the jury more than once for it is a two-step process. When the couple appears in front of the judge for the second time it is more likely that the judge will assume since the couple is over with a separation agreement, the separation agreement should carry over to divorce.

Why the couple should contemplate judicial separation before divorce?

Simply because judicial separation offers far more perks which the husband and wife might miss out on contemplating divorce Let us discuss them one by one below:

  • Let us for a moment get into the zone of business and do some cost-benefit analysis on living together as a couple. The first benefit that comes to all our minds is insurance, right? The legal separation will give the couple just that! Because the law still sees the legally separated couple as husband and wife both the spouse can enjoy the insurance coverage.
  • Now let us consider the other aspect which is the cost. The process of divorce itself will burn a hole in the pocket. Taxes and loans will make the situation worse. Filing jointly on income tax returns is not an option after divorce.
  • Giving all that divorce gives legal separation agreement can limit the liability of a person for any of his or her spouse’s debts. Judicial separation agreement stipulates the parameters on how the jointly owned properties will be shared and other financial aid tools like credit cards and loans.
  • For the couple with financial concerns on how to manage the household and other expenses post-divorce, legal separation gives the benefit of pooling the money from both spouses to afford the household and other expenses.
  • While the above discusses only the financial aspects of the separation in a country like India the real challenge is the social stigma attached to divorce. Till today, many women feel threatened with the stigma attached to divorce and consider it a shame to be separated from their husbands. So, for couples especially women whose religious beliefs do not encourage divorce, legal separation can help retain marital status for religious beliefs.
  • Also for the couple who have children, legal separation provides for the upbringing of the child in a family-like setting not letting the differences among the parents affecting the child.
  • As a bonus point, if the couple still decides to dissolve their marriage through divorce, the legal settlement agreement made earlier can be used as a divorce settlement agreement, while saving the cost of going through the process all over again.

How judicial separation is enacted in different countries?

Different countries recognize judicial separation differently. Generally, they can be classified as:

  • Mandate judicial separation before divorce
  • Judicial separation is recognized but is not mandatory to get a divorce
  • Judicial separation has no value in the eyes of the law

India – In India, all laws related to marriages are governed by personal laws such as Hindu Law, Muslim Law, and Christian Law, etc. In Hindu law judicial separation is recognized in Hindu Marriage Act. However, none of the laws in India mandate to get judicial separation before a divorce.

Canada – The country does not mandate judicial separation and it is not enacted by law. However, judicial separation is seen as a contract between husband and wife. The contract has to be in written form signed by both the parties voluntarily and witnessed. Such a written agreement constitutes a separation agreement and is enforceable at courts.

United States – Judicial separation is recognized in the USA and couples can enforce it by judicial decree. Unlike Canada, the United States does not consider separation agreement as legal separation and therefore issues on child support and child custody need to be addressed by court separately. In some states of the USA, the couple pleading for judicial separation should present in front of the court some grounds such as cruelty or adultery.

The Philippines – The Philippines law does not recognize an informal separation between husband and wife and the validity of separation is only through judicial decree. The judicial separation shall be granted only on two grounds:

  1. Adultery on part of the wife and cohabitation on part of the husband.
  2. An attempt by either of the spouse against the life of the other.

Italy – In Italy, the law mandates to go through a legal separation before pleading for divorce.

The downside of judicial separation

Now comes the important question, What if either of the spouses wants to re-marry?
The key difference between divorce and judicial separation is you are free to re-marry in the former and this makes judicial separation less attractive for the couple who wants to consider re-marriage.
If the couple is contemplating on being separated but living in the same house then things can get a little awkward when either of the spouses starts looking for another relationship. The jealously of ex might kick in and they might try to ruin the new relationship. This can be tamed in cases where the couple gets a divorce because the duo is then considered single and given a legal green signal to date again.

How to get judicial separation in India?

1. The party seeking judicial separation has to file a petition in the district court (family court) on any of the following grounds:

  • Adultery by the spouse
  • Cruelty on petitioner
  • Desertion by the spouse
  • The spouse being converted to other religion
  • The mental disorder of spouse
  • An incurable disease of the spouse
  • Venereal disease in a communicable form
  • If the spouse is not being heard of being alive for seven years or more.
  • Bigamy
  • The husband being guilty of rape

2. It is important to note, even if the petition is for divorce and if the petitioner fails to establish the above-mentioned grounds for divorce, though the facts are established for judicial separation, the court shall grant the decree of judicial separation even though no such prayer is made in the petition.

3. The court on the satisfaction of the grounds mentioned for judicial separation may pass a decree for the same.

Reconciliation after judicial separation

If the time off between husband and wife makes them re-think their decision and get back stronger as a couple then the separation agreement should be rescinded. Because the decree of judicial separation is a decree in rem and it will remain operative till it is not rescinded.

Divorce after judicial separation

If the couple decides to part their ways permanently through a divorce then the case goes to court. If the cohabitation is not resumed between the partners for one year or more after the decree for judicial separation was granted then the judge is likely to grant divorce immediately. Also, the separation settlement agreement which was satisfied by both parties can continue to be the divorce settlement agreement.

A separation agreement in Hindu Law

Upon careful examination of the various acts of Hindu law, it is evident that the concept of a separation agreement is not so upheld. Many cases in the Indian family court which deal with separation agreement are cases of Indian couple living in a foreign land.
Marriage according to Hindu law is not merely a contract but it is seen as a sacrament. The Hindu Marriage Act neither has a provision to enforce separation agreement nor discards the separation agreement.

Conclusion –

In my opinion no matter how disparately the couple wants to break the ties between each other a bond as special as marriage deserves a second chance. The experience of separation can be given a trial and error through a legal separation or trial separation. And later if the couple still decides to go divorce, it will be always welcomed by the court on valid grounds. The decree of judicial separation may make the process of divorce easy and economically less burdensome.
All relationships need a break, but that does not mean that relationship is saturating, sometimes the break gives the much needed time for introspection of one’s decision. Having said that, next time before deciding on divorce it is important to consider other legal options as well.

References –

Can You Be Legally Separated and Living Together | Marriage.com – Retrieved on 15/12/2020
A separation agreement between husband and wife in India – iPleaders – Retrieved on 15/12/2020
Legal separation – Wikipedia – Retrieved on 15/12/2020
Hindu Marriage Act, 1955 PDF – 4.pdf (highcourtchd.gov.in)


Deepashree G (BMS College of Law Bangalore)