US Affidavit of Separation and Indian Court Recognition
When Indian couples living in the USA decide to end their marriage peacefully, they often choose Mutual Divorce under the Hindu Marriage Act (HMA) in India.
To apply for a mutual divorce, both spouses must show that they have lived separately for at least one year. But how can they prove this if they live abroad or even under the same roof but are no longer together as a couple?
That’s where an Affidavit of Separation comes in.
What Is an Affidavit of Separation?
An Affidavit of Separation is a written and signed statement where both spouses confirm that they have been living separately and their marriage has ended emotionally and physically.
It is often notarised in the USA and later submitted in India when filing for divorce. This document helps the Indian family court understand that the separation requirement has been met.
Why Do Couples Need This Affidavit?
Under Section 13B of the Hindu Marriage Act, couples must show that:
- They have lived separately for at least one year, and
- They have agreed that the marriage cannot continue.
If both partners live abroad or share the same home for practical reasons, the affidavit becomes their proof of separation.
How It Proves Separation “Under One Roof”
Sometimes couples in the USA still live in the same house because of finances, visas, or children. But they live separate lives.
The affidavit helps show that the marriage is over even if they share the same address. It usually includes:
- The date of separation.
- A statement that they sleep in separate rooms.
- Proof that they don’t share meals or household chores.
- That they manage finances separately.
- That they have told family and friends they are no longer together.
This helps the Indian court understand that the couple has been separated in spirit, not just in space.
Important: The Affidavit Is Only Evidence
It’s very important to know that this affidavit is not a divorce decree.
It is only a piece of evidence that supports your divorce petition. It shows that your marriage has broken down and you have lived apart for one year or more.
The final divorce can only be granted by the Indian Family Court after proper filing and hearing.
How to Make the Affidavit Valid in India
If you are living in the USA, just getting the affidavit notarised by a US notary is not enough.
To be accepted by an Indian court, it must go through a legalisation process called Apostille.
Step-by-Step Process
- Draft the affidavit with help from your lawyer.
- Notarise it in the USA this confirms your identity and signature.
- Get it Apostilled this is a special international stamp given by the Secretary of State’s office in your U.S. state.
- Submit it in India your Indian divorce lawyer attaches it to your joint divorce petition under Section 13B of the HMA.
Without an Apostille, the Indian court might reject the affidavit because it lacks legal authenticity.
Why the Apostille Is So Important
India and the USA are both part of the Hague Apostille Convention.
That means India recognises documents from the USA only if they are Apostilled.
A simple notary is not enough the Apostille gives international legal value to your affidavit.
This is how your Affidavit of Separation becomes valid proof in India.
Insights: How It Helps NRIs
For Indian nationals in the USA, this affidavit has several benefits:
1. It Fixes the Date of Separation
Courts in India must know the exact date you started living apart.
This affidavit makes that clear, which helps meet the one-year requirement under HMA.
2. It Saves Time in Court
If both partners submit their Apostilled affidavits, the court is more confident that the separation is real.
This can even help your lawyer request the waiver of the six-month waiting period, making your divorce faster.
3. It Strengthens Your Case
If one partner later changes their mind or contests the divorce, your affidavit works as proof of mutual intent to separate.
This is powerful evidence even in a contested divorce.
What Indian Courts Have Said
Indian courts have made it clear that “living separately” doesn’t always mean living in different places.
The Supreme Court of India in Sureshta Devi v. Om Prakash said that separation means the couple no longer live together as life partner.
Even if they live in the same home, what matters is their intent that they have emotionally and practically ended their marriage.
So, your Affidavit of Separation under one roof must clearly show this intent.
Latest Legal Outlook
Recent Indian judgments continue to recognise Apostilled documents from the USA as valid if properly authenticated.
The Indian government has also reminded the public that Indian notaries cannot issue divorce certificates only courts can.
That’s why it’s crucial to ensure that your affidavit of separation is Apostilled in the USA and filed by a licensed lawyer in India.
Frequently Asked Questions (FAQ)
Q1. Is an Affidavit of Separation the same as a divorce?
No. It only shows that you have been living separately. The actual divorce must be granted by an Indian court.
Q2. Do I need an affidavit if I already filed for divorce in the USA?
No. U.S. courts don’t need it. It’s mainly used when filing for divorce in India.
Q3. What’s the difference between Notarisation and Apostille?
Notarisation confirms your signature. Apostille makes your document internationally valid it’s required for Indian courts.
Q4. Can I skip the one-year separation rule with this affidavit?
No. It only proves that you already completed the one-year period.
Q5. Where should I get it drafted?
You should contact a divorce lawyer familiar with both Indian and U S. laws. They’ll ensure the document fits both systems.
Q6. What if we lived in different cities in the USA?
Then your affidavit just needs to state the date of separation and your different addresses.
Q7. Can I use this affidavit in a contested divorce?
Yes. It becomes strong evidence to show the relationship ended long ago.
LawCrust Legal Consulting: Your Trusted Divorce Partner
LawCrust is a trusted Legal Consulting Company that specialises in helping Indian nationals abroad with divorce and family law issues.
Our legal experts help you:
- Draft and Apostille your Affidavit of Separation properly.
- File your mutual divorce petition in India smoothly.
- Connect you with top divorce lawyers in India and the USA.
We make sure your process is legal, fast, and stress-free.
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