Judicial separation (section 10 of Hindu Marriage Act, 1955), is a court order that mandates the rights and duties of a few while they're still married, but living apart; during a divorce (section 13 of Hindu Marriage Act, 1955), the spouses are not any longer married. Although judicial separations aren't quite common, they will be helpful especially while the spouses run through any personal or financial issues affecting the marriage. Because there are advantages and drawbacks to both processes, there are many things to think about when contemplating legal separation vs. divorce.

Judicial separation vs. Divorce: Differences

There are key differences between a separation and divorce. the foremost basic and obvious distinction is that you simply remain married during a legal separation and during a divorce, your marriage is dissolved. Other differences include:

  • Health care/other benefits: legal separation allows for the retention of health care and other benefits including certain Social Security benefits that terminate with a divorce.
  • Marital status: legal separation allows you to retain your legal status, meaning that you are not liberal to marry another; once you're divorced, you'll remarry.
  • Decision-making: Spouses are still considered next of kin and may still make medical or financial decisions for the other; divorced spouses aren't considered next of kin.
  • Debts/liabilities: Spouses should be liable for the debt of the opposite during a legal separation, unlike a divorce where the debts are handled during the dissolution process.
  • Property rights: legal separation preserves each spouse's legal rights to property benefits upon the death of the opposite, but a divorce extinguishes these rights.
  • Remarriage/reconciliation: Divorce can't be undone; reconciliation is simpler with legal separation. With a divorce, you'd need to remarry if you would like a legal reunification.

Judicial separation vs. Divorce: Differences

JUDICIAL SEPARATION

  • Can file a petition at any time post marriage.
  • Only one stage of judgement. If grounds are satisfied, decree granted.
  • Temporary suspension of marriage.
  • Cannot remarry after the passage of decree
  • It is a ground for divorce.
  • A single instance of adultery sufficient for Judicial Sep.
  • The possibility of reconciliation.
DIVORCE

  • Can file only after completion of one year of marriage.
  • Judgement is a two-step process. First reconciliation, then divorce.
  • Brings marriage to an end.
  • Can remarry once decree in favor of divorce is passed.
  • Living in an adulterous relationship is necessary.
  • No possibility of reconciliation.

Judicial separation vs. Divorce: Similarities

In both divorce proceedings and within the proceedings for legal separation, the court decides the following:

  • Separation maintenance: a legal separation includes the alimony and support payment, but is distinguished from the consequences of a divorce and is typically achieved through a "motion pending litigation" In the case of Sohan Lal vs. Kamlesh it was held that in case of judicial separation, a wife is allowed to claim maintenance from husband in case she is not able to maintain herself.
  • Child custody
  • Child visitation
  • Property division (both legal separation and divorce property division is predicated on the couple's situation and the way it relates to the property)

Living Separately and Impact on Property Division

Circumstances may arise that cause couples living apart with no intent to continue the marriage. Additionally, some states have laws that need couples seeking to file a no-fault divorce to measure apart for a delegated period of your time. Living separately can affect the property division.

Property and debt acquired while living separately is assessed differently counting on where the couple lives. Some states determine the property classification supported whether either spouse has the intent to finish the marriage.

Trial Separation

Couples also can have an attempted separation, but it's no real legal effect and is viewed only in terms of your time within the couple's marriage. Any property or debt acquired during an attempted separation remains considered to be acquired during marriage and thus, likely marital property.

Permanent Separation

Once a few decide to separate permanently, they need a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation during which one among the spouses has filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation because the separate property of that acquiring spouse.

Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for family necessities, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses concerning the children's care.

Case Laws

  • Narasinmha Reddy v. M. Boosamma: in this case, it has been held by the court that the passing of a decree of judicial separation do not end the marital status of the parties.
  • Menthena Siromani v. M. Venkateshwara Raju: The case was with the Andhra Pradesh High court and it has been held by the court that where a party failed to establish that there exist grounds for obtaining a divorce, the decree of judicial separation will not be granted.
  • Gomathi v. Kumaragurrupaan: in this case, it was held that where a decree for judicial separation has been passed and the parties did not cohabit even after the period of one year of passing of such decree for judicial separation, a petition for divorce can be filed. The period of one year shall be calculated from the date or original order of the trial court even if such order has been appealed against in the higher court.
  • Sohan Lal v. Kamlesh: It has been held in this case that when the court has passed a decree of judicial separation, a husband can be ordered to give maintenance to the wife if she cannot maintain herself.

Conclusion

Judicial Separation is better than divorce as it provides a chance to the couple to rescind the decree and can cohabit together again after some time of separation as in Judicial Separation there is no legal break in marriage like Divorce. Since judicial separation is an instrument devised under law to afford some time for introspection to both the parties to a troubled marriage, this law provides a chance to both the husband and the wife whether to continue their relationship or directing them to live separately, thus allowing them the much-needed space and independence to choose their path. While Divorce legally breaks the marriage as per the discretion of the couple they can move to the court for the breakage of marriage after making their own final decisions. As Judicial Separation contains more positive aspects than Divorce so Judicial Separation is better than divorce. Judicial Separation is last resort that court provides to the couple before breakage of marriage, court tries to mediate between the couple so that they can think and can consider the possibility of avoiding the permanent legal separation by annulling the marriage because divorce causes adverse effects which can be physical or more importantly mental, which can lead to psychological breakdown which can affect children or to couple so to avoid these adverse effects court provide the option of Judicial Separation which allows them to think rationally and make decision wisely so that it did not affect them or their children, if after making decision they want to annul the marriage they can move to the court for the enforcement of the same or they can remain Judicially Separated without legally breaking marriage (for their children) so Judicial Separation is better in comparison to Divorce.


About the Author: This Legal Article is prepared by Mr. Akshay Agrawal, law student and was an intern at MyLawman. He can be reached at aks429123@gmail.com. 

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