Some marriages do not end legally. They end in practice - the spouses live apart, often in different cities, sometimes for decades - but the legal marriage subsists. The couple does not file. There is no §13B petition. There is no decree. The marriage remains, on paper, a marriage, and continues to produce legal consequences that the partners often do not realise until something forces them to. A short essay on a pattern more common than the litigation data suggests, and a brief practical note on its risks.
How common is the marriage that never ends?
More common than the divorce statistics imply. The official divorce rate in India is among the lowest in the world; the rate of marriages that have effectively ended without producing a decree is, in our practice, several times higher. The pattern is particularly common in three cohorts. Couples in their fifties and sixties who separated decades ago and never felt the need to regularise the position. NRI couples where one spouse is domiciled outside India and the cost-benefit of an Indian decree feels unclear. Couples in their forties where the marriage was not violent or scandalous but had simply, quietly, run its course, and where neither partner felt the procedural cost of dissolution was justified by the practical gain.
What does the law actually require for a divorce?
It requires a petition, a hearing, evidence (in a contested matter) or mutual consent (in a §13B matter), and a decree. None of these is mandatory. The Hindu Marriage Act provides for divorce; it does not require it. Couples who do not invoke the statute remain married for all legal purposes. The companion piece on mutual consent, or contested? traces the procedural shape that the marriages-that-do-end go through.
What are the practical consequences of staying married on paper?
Five recurring ones in our files.
- Succession. The spouse remains a Class I heir under the Hindu Succession Act, 1956. On the death of either partner without a will, the surviving spouse inherits. This is frequently the first practical consequence that surfaces - at a parent’s death, at the death of one of the spouses, in the administration of an inherited estate.
- Will and beneficiary nominations. The surviving spouse is the default beneficiary on most insurance policies, pension nominations, and bank accounts unless the nomination has been actively updated. Many spouses who have been apart for years have not done so.
- Subsequent relationships. A relationship formed during the subsistence of the marriage is, in legal terms, a relationship outside marriage. It does not produce a legally recognised second marriage even if a ceremony is performed; the second marriage is void under §17 HMA. Inheritance for children of the second relationship is complicated, though the children themselves are legitimate under §16 HMA.
- Tax and benefits. Tax filing as married, benefit-claiming as married, and a range of small administrative actions assume the marriage subsists. Where one partner has built a parallel life over the years, the assumption can produce friction.
- Cross-border consequences. For couples where one spouse has emigrated, the subsisting Indian marriage can interfere with the foreign jurisdiction’s recognition of a new partnership or marriage. The companion track on cross-border family law addresses the conflict-of-laws issues.
Why don’t couples file?
Three reasons recur. The cost - perceived cost, more than actual cost - of an Indian matrimonial proceeding. The desire to avoid the public record. And the reluctance, particularly in older couples, to introduce a legal event into an arrangement that has settled into its own equilibrium. The first reason is usually misinformed; mutual consent under §13B with a clean MoU is, in most cases, neither expensive nor publicly visible. The second reason is partially valid; the Indian family court is more open than the parties expect, though the §13B file is the least public route available. The third reason is the hardest to argue against - the equilibrium is real, and the legal event does disturb it.
What about reconciliation after years apart?
Occasional but real. Some couples who lived apart for years reconcile in their fifties or sixties, often after a children’s wedding or a health event in the family. The subsisting legal marriage, in this case, becomes a quiet asset - there is nothing to regularise, no remarriage to plan, no prenup conversation to have. The structure was preserved by default and is now available to be inhabited again.
What should the not-yet-divorced couple do?
Two practical steps, at minimum. Update beneficiary nominations on every financial product. Make a fresh will reflecting the actual intended distribution. Whether to file for divorce is a separate decision; the two preceding steps are not optional regardless of the divorce decision.
For couples who have been apart for many years and are considering finally filing, the cooling-off period waiver is usually available. The procedural cost is lower than the couple usually expects.
The marriage that never officially ended is not, in law, a former marriage. It is a present marriage that has, in practice, been on pause. The law does not see the pause.