A woman filed an application asking the Bombay High Court to waive the cooling-off period for divorce in October 2020 in light of her pregnancy. She requested relief under section 13B(2) of the Hindu Marriage Act, 1955. In its decision, the supreme court explained that a court could waive the cooling-off period on a case-by-case basis when a man and wife cannot reunite.
Legal separation and failure are the same things. It is a decision toward growth and self-realization rather than a reflection of failure. There has been a taboo against divorce in India for a long time, but with better education, it is slowly becoming less taboo.
A marriage ending can still be a tremendous emotional burden that is hard to handle alone. To get a divorce without inflicting a lot of psychological trauma on each other, it’s best to file for a legal separation if you want to get a divorce for the least amount of psychological trauma. So, what is a legal separation, and what documents are required for a Divorce in India?
Here is a list of what you need to know about the various grounds and documents you need to obtain a legal separation.
- What Is a Legal Separation?
- What Is a Contested Divorce?
- Divorce Laws in India
- What to Remember While Filing for legal separation in India
- When Can Someone File a Divorce?
- Primary Documents Required for legal separation in India
What Is a Legal Separation?
A legal process occurs in India for the termination of a marriage. It is initiated by one spouse filing for divorce. Either spouse files a divorce notice to the other. Divorce serves as a legal way of terminating a marriage. Legal Separation is lawful when the husband and wife want a divorce, so it is referred to as a Legal Separation . Both parties wish to separate from each other, so it is also considered a Legal Separation. There are many advantages to a Legal Separation, but the most important is that the process is less costly and less traumatic than a contested divorce.
What is a Contested Divorce?
The other type of divorce granted in India is the contested divorce. However, this process tends to be longer, messier, and more traumatic than a divorce. Divorces are contested when filed without combined consent, that is, without the consent of both parties involved. The various reasons for filing a contested divorce are cruelty, desertion, adultery, disease, the presumption of death, and mental disorder.
Divorce Laws in India
The journey of getting a divorce in India has a lot of emotional ups and downs. It usually involves the help of a family lawyer or an attorney. Terminating a marriage is a traumatic experience because it marks your marriage’s end. We have separate marriage laws for distinct communities because India is a melting pot of different religions, cultures, and traditions.
Therefore, divorces occur per that particular community’s marriage customs or regulations. For instance, all Hindu, Sikh, Jain, and Buddhist marriages and divorces happen as per the rules in the Hindu Marriage Act, 1955. Regarding Muslims, cases and verdicts occur per the jurisdiction of the Muslim Marriage Act, 1939.
Similarly, Parsi marriages and divorces are handled by the Parsi Marriage and Divorce Act, 1936. Furthermore, the Indian Judiciary has also established the Special Marriage Act, 1956, to treat spouses who belong to different communities and castes. In case either spouse belongs to a foreign country, divorce happens as per the rules of the Foreign Marriage Act 1969.
What to Remember While Filing for a Legal Separation in India
- Make sure you and your spouse talk in detail about child custody and come to terms with it for your child’s well-being.
- If one of the spouses is financially dependent on the other, there might be an alimony settlement. Try to discuss these matters before filing for a divorce so that no later arguments are raised.
- Another big hassle with divorces is the settlement of shared properties and assets. Do sit down and discuss how you would like to split the properties and assets between yourselves so that there is a clearer picture of the road moving ahead.
When Can Someone File a Legal Separation?
- Both the husband and wife must be willing to file for a divorce
- The spouses should have stayed separately for at least one year before filing for divorce
- When both the parties involved feel they cannot live together anymore
- The parties have spent at least one year as a married couple
Legal Separation Comes Under the Purview of the Following Laws
- Hindu Marriage Act, 1955 – Section 13B (1-year separation minimum)
- Special Marriage Act, 1954 – Section 28
- Divorce Act, 1869 – Section 10A of the (2-year separation minimum)
- Parsi Marriage Act, 1936 – Section 32B
- Christian and Muslim Marriage Acts
Essential Documents Required for a Legal Separation in India
- Address proof of husband and wife
- Details of the petitioner’s profession and their present remuneration – Salary slips/appointment letter
- Income tax statements for the last 3 years
- Information regarding the family background of the petitioner
- Assets owned by the petitioner
- Marriage invitation card
- Marriage certificate
- Evidence showing spouses living separately for more than a year
- Evidence showing failed attempts at reconciliation
- Four photographs of marriage
Conclusion
A legal separation requires these documents, but additional documents may be required depending on the grounds on which the petitioner is requesting one. As a result, you will need more documents when filing for a contested divorce. These documents will vary depending on the grounds used to file the divorce. If you still have any doubts or need help, please reach out to our team or leave us your comment below.
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