Judicial Separation, Divorce and Succession related Issues in India

Judicial separation and divorce are two legal remedies available to married couples who are facing problems in their marriage. While judicial separation allows the couple to live separately without ending their marriage, divorce brings an end to the marital relationship. Both of these legal remedies have implications on succession-related issues in India, and it is important to be aware of the legal provisions to make informed decisions.

In India, judicial separation and divorce are two different legal concepts. Judicial separation is a temporary arrangement that allows a married couple to live separately while remaining legally married, whereas divorce is a legal process that dissolves the marriage and ends all legal ties between the spouses.

When a couple obtains a judicial separation, their marital status is not terminated, and they remain legally married. This means that any property acquired by the couple during the subsistence of their marriage continues to be treated as joint property. Therefore, in case of judicial separ

ation, the rights of each spouse to the joint property are not affected, and the same rules of succession apply as in the case of a married couple. If you are considering judicial separation and not divorce, you should also consider drafting a will or changing your will and other beneficiary designations and nominations to reflect your new status. In the case of a will made by either spouse during the subsistence of a judicial separation, there may be some ambiguity regarding the intention of the testator. It is therefore important to make clear provisions in the will regarding the distribution of property in such cases.

It is important to note that in India, a will made prior to being married is automatically revoked by the marriage of the testator[1]. However, the converse is not applicable, i.e., a will made prior to being divorced is not automatically revoked. Similarly, all your nominations do not get revoked on your divorce.

Normally, spouses create wills where each spouse’s property is left to the other spouse. It is important to note that if you have made a will, the final divorce judgment will not automatically revoke all rights to a former spouse’s property allocated through a will. However, other statutory inheritance and property rights terminate upon divorce. It is important to prepare a will detailing out who you want to inherit from you after your divorce to ensure that your property is distributed according to your wishes.

It is essential to remember that no marital rights to inherit property from a spouse are revoked by the act of separating. Even if you’ve been separated for years and live completely separate lives, your spouse will still inherit property from you if you die before the divorce is granted, unless you prepare a will detailing out who you want to inherit from you.

In conclusion, it is crucial to understand the legal implications of judicial separation and divorce on succession-related issues in India. Seeking the advice of a legal professional and making informed decisions can help ensure that your property is distributed according to your wi

shes.

[1] Section 69 of Indian Succession Act, 1925