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.
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.
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:
DRAFT OF SEPERATION AGREEMENT BETWEEN A HUSBAND AND WIFE
THIS AGREEMENT made at. on this. day of. 20___, between A, son of B, resident of. (Hereinafter called "the husband") of the ONE PART and Mrs. A his wife (hereinafter called "the wife") of the OTHER PART.
WHEREAS the husband and wife are living separately due to differences and disputes having arisen between them; and
AND WHEREAS they want to live separate, apart from each other and intend to live separate at all times hereafter unless there is any reconciliation.
NOW THIS AGREEMENT WITNESSETH THAT:
1. The parties shall live separately and apart from each other and no party shall have any right, authority over the other or shall institute any legal proceeding for restitution of conjugal rights or otherwise.
2. The husband shall during the life time of the wife pay to her a sum of Rs. p.m. for her maintenance and the maintenance of the children. However, if the wife does not lead a chaste life, the husband shall be entitled to stop the payment of maintenance allowance after giving her notice.
3. The wife shall be entitled to the custody and guardianship of the children of the marriage, namely C and D now aged. Years and. years, respectively. The wife shall maintain and educate the said children until they shall respectively attain the age of majority. The husband shall not be liable for any claim or demands of the children and the wife shall keep the husband indemnified from and against all claims and demands in respect of such children.
4. The wife shall pay for and discharge all liabilities or debts incurred by her after the date of these presents, whether for maintenance, support or otherwise and the husband shall not be liable for the same. The wife indemnifies and keeps indemnified the husband against all claims, actions and demands on that account and if the husband has to pay any sum on account of the liabilities of debts incurred by the wife, he is entitled to deduct the same from the amount payable to the wife under this agreement.
5. The wife may remove all her wearing apparel, jewelry and other personal effects, etc. belonging to her from the husband's place and retain the said goods as her separate properly.
6. The husband may have the access to the children at every Sunday between ___A.M. to ___ P.M. He may have the sole society of the children in the said timings on the said day.
7. Notwithstanding anything contained in this agreement, it is expressly agreed that if at any time hereafter, the parties live together as husband and wife with mutual consent, then in that case, the said sum payable to the wife-under this agreement shall no longer be payable and the agreements hereinabove contained shall become void.
8. This agreement shall be revoked by the death of either the husband or wife.
9. This agreement shall be executed in duplicate. The original shall be retained by the husband and duplicate by the wife.
IN WITNESS WHEREOF, the parties have set their respective hands to these presents and a duplicate hereof on the day and year first hereinabove written.
Signed and delivered by the within named husband Mr. A.
Signed and delivered by the within named wife Mrs. C
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.
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.
A separation agreement between husband and wife is not a validly recognised and enforceable agreement in India till now. However, at the time of divorce in the Courts, it can help in painting a picture of the intention of both the parties and substantiate that there were issues/problems in the marriage, subject to admissibility by both the parties.
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.