Prenup: Agreeing to disagree

After courtship of nearly four years, when Divya (26) finally decided to tie the knot with Surbhit (29), they mutually decided to go in for a prenuptial agreement, which would clearly outline the demarcation of their finances, just in case it didn’t work out for them. Presently prenuptial agreements in India don’t have any legal sanctity. Juxtaposed with the sharp rise in cases of divorce globally the idea of having a prenuptial agreement has become immensely popular, especially amongst the youth.

Although in India as compared to America or other countries the rate of divorce is low, but in recent times it has significantly risen. Reports suggest that the trend of divorces in India has shot up from earlier the rate being just 1 in 1,000 approximately ten years ago to 13 per 1,000. This is quite low in comparison to the American average of 500 per 1,000.

The government is mulling to bring in a model prenuptial agreement under The contracts Act and will be applicable across board. This agreement will be optional and can be customised as per the needs of the couple. The primary areas that it will focus on are finance, property and custody of the children. The couple can customise their needs and sharing of responsibilities accordingly in the agreement.

A senior official from the Ministry of Women and Child Development explaining the concept and its inception in the Indian context, said: “The prenuptial agreement is initiative of our minister Maneka Sanjay Gandhi. Her objective was that in case of an unfortunate separation the woman should have some well-defined rights regarding property, income or custody of child. We had a meeting with officials from the ministry of law as well as some senior lawyers regarding the issue and discussions on it are still in progress.”

The WCD Ministry has designated a group of lawyers to deliberate on the issue and draft a ‘model’ agreement.

“A group of lawyers who have studied this issue in-depth clarified that some 20 years back during an international convention this concept started. But it had started in a very different context in the West wherein if two well-to-do and affluent individuals come together and decide to get married then in order to avoid future disputes they come to an agreement about sharing of finances and property. It is not like India where women suffer a lot. The concept as explained to us by the group of lawyers is not what we were looking for. We have asked the same group to study the issue and come up with some specific recommendations which are applicable in the Indian context,” added the official.

Citing another major hurdle, the official said, “Changing personal laws in India is a problem and in fact is impossible to achieve. Seven to eight countries which have adopted this prenuptial agreement have also amended their personal laws which means under the law in those countries it can be enforced. If one party doesn’t honour his or her commitments then it can be legally enforced. In India if we were to amend personal laws in India then it is not a feasible proposition. There is a separate law for Hindus, Muslims, Sikhs and other religions in our country and that we will be just kicking up a controversy. The only other way it can be implemented in India is by making it a legally enforceable contract under the Contracts Act. This aspect also we have asked the group of lawyers to examine it and come up with recommendations.”

The official added, “By mid-February they will be submitting their recommendations. It will be optional. We have in mind we will put in place a model agreement which the couple who is getting married can adopt. It will be applicable across board for all religions. It will be enforceable under the Contracts Act.” Will the proposition all cover sharing of responsibilities in the marriage including work at home?  “We haven’t discussed sharing of work as such. It is more focused on sharing of finances, property and custody of children,” added the WCD official.

The legality of implementing such a agreement is still under discussion, but senior advocate Sanjay Hegde feels that it is very important that such an agreement must be recognised by the courts or else it will have no legal sanctity. “This agreement will come under the Contracts Act, but the question so far such contracts that have been tested in court. There may be questions of public policy involved. It could also be an agreement which may encourage easy dissolution of marriages. Even if it is optional, the question is will it have a legal sanctity? You can make any model agreement but it will not work if the court does not give effect to it. The Court can give effect and say that parties are bound by it. Unless matrimonial and other courts agree to this it will be just a piece of paper.”

Hegde elucidated, “Even if someone had to challenge it in court they can say it is opposed to public policy or it was fraudulently obtained or there was coercion as he or she said they won’t marry me if they didn’t sign it. The idea of prenuptial agreement initially came about as a means of limiting women, as the lawyers of millionaires in the USA want to curtail the amount paid to women after the divorce took place. Especially under the laws in the USA a woman was entitled to half of the assets of her husband. So for the millionaires it was relief as earlier whenever there would be a divorce for them they would lose half their money. That’s why they decided to limit the amount in the prenuptial agreement. The most famous case in this regard has been - Jacqueline Kennedy’s marriage to Aristotle Onassis.”

Noting a paradigmatic shift in society’s attitude towards marriage with recent spate of divorce cases, Dr Samir Parikh, Director, Mental Health, Fortis Healthcare said, “Bringing in a ‘model’ prenuptial agreement is a positive move in the background of breaking up of marriages. We must understand certain facts of life – that now marriages are not what they used to be a century back. The fact is that now there are a lot of marriages that don’t survive and that number is increasing. In that reality when there are issues like things don’t work for the couple and they go through a divorce then they need some kind of understanding to happen between them when they part ways. If there is already something which is there in place from before it may play as a safeguard for both parties and more so for women.”

“I feel that in the modern day when relationships and marriages are not doing so well then it is a fair thing if people can have a prenuptial agreement. The essential concept of prenuptial is focused on finances. It is also sometimes about children, all other things are not put in it. In the modern day and age when the percentage of relationships failing is increasing in the past decades, then it makes sense for both parties to play it safe for both of them.  So if at all things don’t work out for the couple then it is not dirty and messy parting in fact it is a clinical one where minimum damage is done,” he added.

With varied perspectives emerging on this crucial issue, the most significant aspect of women’s right to property is explained by Tulsi Patel, professor , Sociology, Delhi School of Economics. “Marriage is sacrament in India where the ceremonial, spiritual and emotional is the overarching factor. I am not sure how the contract in this scenario will work. Also for all those people who have no money in a country which constitutes nearly 50 per cent of the country’s population, where the man and woman have to work every day to actually survive. What happens in this case is that because there is no money, there will be no division. We are only dealing with the middle class and the upper middle class where there is property. This is going to be a problem because then the question is what do you consider as property –  is it self-earned or inherited?” said Patel.

“Since 2005 there is the Hindu Succession (Amendment) Act which defines that women also inherit ancestral property. But how many women are taking that property and the insignificant amount who claimed it actually ruined their relations with their brothers. so when a marriage breaks down the state has absolutely no way of taking care of the woman, she has to go back to her family and rely on them. it is good to have some right for the woman in the marriage contract I do agree. But I don’t know how practical or feasible will it be if for the past 11 years we have not been able to implement her receiving her ancestral share in the property. She has still not been able to get parental owned property till now let alone receiving some from marriage,” added Patel.

She pertinently pointed out, "The problem is everyone is trying to get a propertied male as a husband or son-in-law but the woman’s right to property is still not the significant right. Even if these laws are passed their implementation might be a problem. If it is passed then it is very important to make it clear as to what a woman and a man’s share in the property will be."

In a rapidly changing dynamic world, would the new-age marriages want to have a ‘model’ prenuptial agreement in place regularly? Will the woman be able to exercise the conditions laid down in the agreement and get her share? 

Will the ‘model’ prenuptial agreement be legally binding? These are some significant questions related to the issue, which if kept in mind might actually lead to empowering women.