A Prenup Before Marriage Is the Way Forward; Can India Handle It?

A prenuptial agreement eases the lives of both men and women in case a marriage does not work out. (Photo: iStock photos)

With High Courts and Supreme Court going on vacation, the Family Court lawyers and judges sweat it out in the sweltering heat further compounded by the acrimony amongst the warring couples. I always remark partially in jest – Family Courts are not shut because husbands and wives never stop fighting. The major fights in court are regarding the finances. About three years ago, I had mooted the idea of pre-nuptial agreements, saying, that it would at least cut down one major bone of contention between the couples going in for a divorce.

Prenups Help Both Men & Women

A prenup is a contract pure and simple, with no derogatory labels required or necessary. (Photo: iStock)

Prenuptial agreements are actually pretty straightforward – The spouses can decide on the proportionate division of assets in case of a divorce. If the husband is worth let’s say 15 crores and the wife is worth 10 crores or considering the growing financial clout of women in some cases it may be the reverse, they could decide about the division of wealth depending on what they think is the best way forward, in case of a divorce. Of course, other variables like the number of years of marriage, the children and the growth in wealth could also be taken into consideration. So let’s say the couple decides that if they have been married for 5 years and have no children they would divorce and not stake claim on each other’s assets. This is an example of the simplest form of a prenup.

This would reduce the financial distress that most women face when confronted with the realities of a divorce. On one hand, women are becoming financially independent yet most women don’t have either property in their name nor are they the stakeholders in family businesses. A prenup can make a woman stand very clear if the marriage were to end in a divorce. It would be a contract pure and simple, with no derogatory labels required or necessary. I specifically mention labels because we are quick to paint women as ‘gold diggers’ each time they ask for money in a divorce.

Even men would not have to worry about the financial landmines they may encounter in case of a divorce.

Emotions Vs Practicality

In India, we are not yet ready to accept that divorces are the unwanted houseguests that are here to stay. (Photo: iStock)

Legally speaking, Section 2(h) of the Indian Contract Act 1872 defines a contract as an agreement enforceable by law, yet it nullifies all contracts with respect to marriage or which has marriage as a consideration.

Up until now, prenups have no legal standing, because according to the law in India, marriage is not considered a contract. It is treated as a religiously sanctioned bond.

Even though prenups are not legally valid in India, the couples could draw up an agreement which could serve as a guideline for them in case anything went wrong with the marriage. After all, if we can talk about sharing the marriage expenses why can’t we take the next step forward and discuss the financials in case of a divorce? It’s the socio-legal hurdles that are difficult to overcome when drawing up either a prenup agreement whether legally valid or not. In India, we are not yet ready to accept that divorces are the unwanted houseguests that are here to stay. The reasons for the divorces may be diverse but the fact remains that divorces are on the rise.

Maneka Gandhi, Union Minister for Women and Child Development, has brought the subject of prenups to the centre stage by discussing it with the Law Ministry. Hopefully, this will lead to a change in the right direction.