Legal Separation Vs. Divorce - some significant points to understand

Most individuals befuddle between a divorced couple and a separated one. Well, they may be two comparable things, however in terms of the more diminutive points of interest, they are marginally distinctive. Here are the main points by which we can describe and differentiate a legal divorced vs. separation.

To understand like a layman, the difference between a legal separation and a divorce is that a divorce ends a marriage, while legal separation does not. A legal separation gives some cool-off time for a disturbed couple and brings them a chance to repair their relationship. And if things work out properly between them, the legal separation ends and the couple can continue their marriage. On the other hand, a divorce puts a permanent full-stop to the marriage. There are some more differences between a legal separation and a divorce.

A few prominent differentiating points are as follow:

• In India, what is loosely called legal separation is, in law, “judicial separation” - granted under Section 10 of the Hindu Marriage Act, 1955 for marriages governed by that Act, or under Section 23 of the Special Marriage Act, 1954 for civil and inter-faith marriages. A decree of judicial separation relieves the spouses of the obligation to cohabit, but the marriage itself subsists; a decree of divorce, by contrast, brings the marriage to an end.
• Because a judicially separated couple are still legally married, their mutual rights and obligations - such as the right to claim maintenance and rights of inheritance from each other - continue, whereas these are affected once a divorce is granted. (Concepts such as continuation of health insurance or social-security spousal benefits after a fixed number of years of marriage derive from foreign legal systems and do not apply in India.)
• A judicial separation is also considered a ‘softer’ option than divorce. A divorce is considered an extreme step and may not be taken by several couples for religious and personal reasons.
• A judicial separation may still end in a divorce, but it gives the marriage a chance, and the couple to get back together.

Practically speaking, no court of law wants a couple to get separated. In a divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, the law therefore provides for a gap of six months (and not more than eighteen months) between the first and second motions under Section 13B(2). This cooling-off period is meant to give the couple a chance to reflect, revive and repair their relationship. However, it is important to note that this six-month period is directory and not mandatory: the Supreme Court has held that family courts may waive it in appropriate cases where there is no chance of reconciliation (Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746), and the Court has reaffirmed and clarified this power to waive the waiting period in Shilpa Sailesh v. Varun Sreenivasan (2023). Almost all the family courts have established a separate counselling cell to extend proper guidance and suggestions to those who have got deviated from their path.

If you need any further information or clarification in this regard, please feel free to contact us or post your queries on our website where one of our exclusively appointed legal experts will help you more.