Separation Agreement between Husband and Wife


    What is Separation Agreement between Husband and Wife?

    A separation agreement between husband and wife is a post-matrimonial agreement through which the married couple decides to part ways without any aid from the judicial system. It is a kind of settlement agreement between parties to the marriage, deciding issues on maintenance, custody of children, division of property, etc. 

    Why is it required?

    It is a settlement agreement wherein the parties agree to live separately, without filing a petition for judicial separation or divorce. Although, in India, a separation agreement does not hold any legal validity by way of statute or judicial decisions, it is slowly setting its base in India. Even though several courts have held that a separation agreement has no legal sanctity, it is not altogether worthless, since it still paints a picture regarding the intention of the parties and thus could be of help at the time of divorce. 

    What should it cover?

    It should consist of all the necessary terms and conditions. The following are important terms (among others) that must be included in an agreement of this nature:

    1. The relevant personal details of the parties such as full name, residential addresses and ages of the parties to the agreement, 

    2. Information related to the kind of job/employment and incomes of the parties,

    3. Properties owned by the parties,

    4. Maintenance clause consisting of who will pay maintenance to whom and how much, 

    5. Custody clause consisting of the issues related to child care,

    6. Details regarding division of properties - both immovable and movable,

    7. Full disclosure of information clause, 

    8. Any other duties and responsibilities of and between the parties, and

    9. Date of signing of the agreement

    Documents Required

    There are no specific documents required for the drafting and execution of a separation agreement between parties to a marriage. However, ID proofs to prove information related to identity and property/financial documents to be sure of the ownership of properties and that of the parties’ finances could be required. 

    Procedure

    No set procedure is applicable in the making of such an agreement between the husband and wife. However, you could hire a lawyer to draft it and once the agreement has been drafted by a lawyer, it should be specifically and carefully read by both the parties to the agreement. Any necessary changes required to be made shall be carried out and once the agreement is finalised, it shall be signed by both the parties along with the requisite witnesses. Each party can thereafter keep a signed copy of this agreement between the parties to marriage. 

    How can a lawyer help?

    One of the first and the most important steps that you must take is to hire a good documentation or divorce lawyer as he/she is aware of the nitty gritty of the legal procedures and necessary requirements involved in drafting of such agreements between husband and wife, and also the repercussions of signing one. A lawyer has the necessary legal knowledge and experience to handle and draft such documents. He/She will be able to guide you and draft for you according to your particular situation -  the facts, circumstances and needs involved. A documentation/divorce lawyer is aware of good drafting technique and the clauses that must be included in such an agreement keeping in mind the future divorce procedures. Hiring a good lawyer in order to draft such important legal documents is a prerequisite and will help you in more ways than one. Even if you have received an agreement from your spouse, it is best to hire a lawyer to vet/proof read the agreement before you sign, so that it is assured that your interests are not vitiated and it is not a one-sided agreement.

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