Separated But Not Divorced? Available Rights, Key Considerations, And More

Rights If One's Separated But Not Divorced

In India, being separated, in technical terms, means that both spouses “are living separate lives, but marriage still exists in the eyes of law,” says Ms Sharma. When it comes to the living arrangements, marital status, property, and financial rights, all of these remain the same under the purview of the legal system, as married couples.

So, in essence, without getting divorced, you still have the following five rights:

1) Right to Maintenance:

If you are either unemployed or unable to provide for yourself, you can ask your spouse to maintain you financially, that is, maintenance.

2) Right to Stay in the House:

Even if the house stands in their name, you have a right to live there, especially if you are a woman.

3) Custody and Support of Children:

You can seek custody from the court for a child. The parent who does not have custody may have to pay support for the child.

4) Property Inheritance Rights:

You may have the right to sell any property jointly owned and could also inherit from your spouse if he/she dies without a will.

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5) No Right to Remarry:

Until there is the legal dissolution of a marriage, the parties cannot enter into another marriage.

All About Separation Under Indian Laws

To understand this, one must know that there is a difference between judicial separation and a separation agreement.

Judicial separation, as the name suggests, is where a couple can stay separately while remaining married as per court orders. The grounds for this include cruelty, desertion, adultery, and more. Meanwhile, a separation agreement is a mutual deal where the couple lives apart without court intervention. However, these are not that strongly enforceable under the law.

The two laws governing separation in India are:

• Hindu Marriage Act, 1955: Section 10 is about judicial separation
• Special Marriage Act, 1954: This is also for judicial separation

3 Key Considerations Before You Decide For Separation:

Getting married is a landmark decision for anyone. Walking out and staying separated is the same. Before one decides to opt for the latter, these are the three key considerations:

1) The Child

One parent would have the custody of the child while the other would have visitation rights in a judicial separation.

2) Finances

Typically, a woman who’s not financially independent seeks alimony or maintenance from the estranged husband. However, in many cases, they forego the same and only ask for financial support for the child.

3) Restrictions

When one is separated, they may face restrictions when entering new relationships in a few states. So, going through the law of the land is essential.

“An act of separation does not terminate one's rights. Should you find yourself in doubt, a consultation with an attorney would help clarify your legal standing,” Ms Sharma says.

Separation is an emotionally, mentally, physically, and financially taxing process for either of the spouses. But, at times, that’s the only way to go forward. However, before one decides to go that way, they must educate themselves on the legal rights and the options available for them.

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