Divorce laws

Is India really ready for prenuptial agreements, ask divorce lawyers

The ministry for Women and Child Development wants to make prenuptial contracts legal, but they may not work effectively in an unequal society.

If prenuptial agreements were made legal in India, would they really make it easier for women to get maintenance or property rights in case of a divorce? Not in a society as pervasively unequal as India, say lawyers.

Maneka Gandhi, the minister for women and child development, has been keen to give prenuptial or pre-marital agreements legal validity as contracts. On November 23, her ministry has called for a consultation with legal experts and other stakeholders to discuss the possibility of bringing about a law that would legitimise these pacts between spouses.

“Prenups”, as they are commonly called, are contracts in which two partners agree upon a set of terms and provisions before marriage. They typically cover concerns about dividing property and other assets, alimony and child custody in case of divorce, but could also include conditions about infidelity or even division of marital responsibilities.

Prenuptial agreements are recognised as valid legal documents in several Western countries, but they have no validity in India. A growing number of Indian elites – typically from business families – are now choosing to sign prenups before tying the knot, but in case of a divorce, these pacts would mean nothing in a court of law.

But even if the government succeeds in making them legal, many lawyers believe prenups are unlikely to be popular in India, where marriage is considered a religious union and where a bride’s family often has fewer bargaining powers than the groom's.

‘They will definitely save the court’s time’

Prenuptial agreements have been on the government’s agenda for more than three years, ever since the Marriage Laws (Amendment) Bill was introduced. The major aims of the bill were to include “irretrievable breakdown of marriage” as a clause for divorce and to allow women half the share of her ex-husband’s property. “Prenups were lower down on the agenda and they were not discussed earlier, and eventually, even the other amendments proposed in the bill were not passed,” said Vandana Shah, a divorce lawyer in Mumbai.

Prenuptial agreements are in the limelight now, but for them to be given legal validity, Indians would first have to negotiate the link between marriage and religion.

“The reason prenups are legally null and void right now is because marriage is considered sanctimonious and religious, and a prenuptial contract is not guided by religion,” said Shah. “Even if you have a registered marriage in court, it would be considered as having religious sanctity.”

In a country steeped in tradition and religion, prenuptial agreements would have limited takers even if they were legal.

“Right now, only the elite get into prenups so that their financial assets are looked after,” said Mridula Kadam, a family court lawyer in Mumbai. “Most of our country is poor and the masses would not opt for premarital contracts. But prenups will definitely cut short acrimonious battles in court and save the court’s time.”

‘Women cannot be self-sacrificing’

The main reason the Women and Child Development ministry has taken up the case for legalising prenups is its concern for the security of divorced women. Divorce cases in India often run into several years of courtroom battles over property, assets and maintenance, and women often end up losing out on their rightful share. If the terms of property division and maintenance are clearly spelt out in a legally valid prenup, however, it could ensure that women get the assets and support they are entitled to without going through lengthy litigation.

“On principle, this is very nice and prenups in other countries do bring equality for women,” said Aishwarya Bhati, a Supreme Court advocate in Delhi. But in India, where the tradition of dowry is still pervasive, signing pre-marital contracts could be a bit more complicated.

“Here, a girl’s family already has a set of social taboos to deal with – they are almost never on equal terms with the groom’s family,” said Bhati. “A bride’s family is not always in a position to choose, so would they be in a position to negotiate an agreement that can provide security to the girl?”

A good example, says Bhati, is the Muslim nikah, the only kind of marriage in India that is, in fact, a contract. According to nikah rules, the groom has to pay a mehr or bride price – an amount meant to secure the woman’s well-being in case of a divorce. “But today people just pay paltry, token sums of money as mehr – it is never commensurate with what women would actually need to secure themselves after a divorce.”

In this social context, prenups could remain nothing but lip service.

“Prenups can work if women are smart and concise while writing them,” said Shah. “They must not be self-sacrificing and agree to unequal terms.”

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