What Does Getting A Prenup Mean In India?
Though Indian law does not recognise a prenuptial agreement, there are ways one can ensure financial safety within a marriage…
ICYMI, Reports of cricketer Yuzvendra Chahal and his partner Dhanashree Chahal getting a divorce have been doing the rounds for a while. While they hadn’t confirmed the news officially, the couple had been sharing cryptic posts on social media to hint at their separation. Reportedly, their divorce is now finalised, with the couple citing “compatibility issues” as the reason. Amidst all speculations about their relationship status, there have also been conversations around Dhanashree receiving a hefty alimony as a result of the divorce. Fans of the cricketer took to the Internet to question the fairness of the rumoured INR 60 crore alimony, resorting to nasty trolling online. Mentions of ‘prenuptial agreements’ also started cropping up.
Over the years, we've seen prenuptial agreements being painted in a dramatic light in movies. International films such as Intolerable Cruelty, The PreNup, Divorce Invitation and Cheaper 2 Keep Her have discussed the prenup to highlight the tricky nature of the legal document. Not only this, but reality TV shows and talk shows like Love Is Blind, Prenup Challenge and The Steve Harvey Show have also brought up the controversial piece of paper. And it seems that even the celebrities who’ve chosen to draw up this contract have left us with a slightly dramatic impression of it; case in point- Michael Douglas and Catherine Zeta-Jones, Tom Cruise and Katie Holmes and Donald and Ivana Trump’s agreements!
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But, aside from the difficult conversations that need to be had to draw up the contract, the prenuptial agreement can prove to be quite a useful contract.
So, What Is A Prenuptial Agreement?
Marriage is a union of two people and their lives. It often involves merging resources to build a life together. But every union and healthy relationship must consist of boundaries. The truth is that circumstances are ever-changing and everyone deserves to feel safe and sovereign in a marriage; that can require securing one’s identity and finances with the help of verbal, non-verbal and written communication.
Experts often advise women to maintain separate bank accounts and investments to ensure that they remain safe and stable if their marriage ever falls apart or their partner departs. This is also the reason pre-nuptial agreements came into existence.
The history of prenuptial agreements…
Essentially, pre-nuptial agreements are legally binding contracts that decide how finances, property, inheritances, taxes, debts, businesses, and other matters will be handled during the marriage, and if circumstances call for it, after it. Historically and culturally, various versions of the legal prenuptial agreement have existed. For instance, ancient Hebrew marriage contracts known as Jewish Ketubah ensured the legal division of property and assets in the case of divorce or death and protected women’s rights on a financial level. In Ancient Egypt, Greece, and Rome, marital contracts included clauses for women to have financial provisions if the marriage did not work out or if the husband’s demise occurred.
But the better word for the protection of women’s financial stability in a marriage is bridewealth. A custom that has been seen in African countries and cultures and the Islamic law. However, in African cultures, there are no written contracts as such associated with the bridewealth. Islamic law, on the other hand, prioritises something known as Mahr, a form of bridewealth that is clearly mentioned in the marital contract which is signed by the couple getting married. There are two different types of Mahr; immediate and deferred, one that assures immediate financial allocation, and the other that is for a later time.
How do prenuptial agreements work in present-day India?
Indian law does not recognise prenuptial agreements as we already have many laws intended to protect women’s financial standing in a marriage (or after it). Another reason prenuptial agreements are not recognised in India is that Indian marriages are noted as sacred bonds.
“Indian marriages are considered sacrament, lifelong bonds, rather than a contractual relationship. No precedents have been set in our legal framework or acts regarding pre-nuptial agreements,” says Mr Kesar Singh Sawney, a Delhi-based Divorce lawyer who specialises in family law as well.
“The prenup is a private agreement and does not relate to or fall under statutory or personal laws. And, the Hindu Marriage Act’s provisions, maintenance and alimony sections already protect women’s interests and financial security. Because of this, a private agreement holds no real value.
Along with this, socially, a prenup is not considered a trustworthy document as the vast majority of our country’s population resides in rural India, and in such circumstances, a private contract may have different implications.”
But as bleak as the relevance of the prenup may seem, there are still plenty of reasons to create a legal document before marriage. Because, though it is not legally viable, presenting a contract in a time of need can help the court settle a case with precision. Think of a prenuptial agreement as a solid, written agreement that can be used to investigate the divorce and the parties involved on a fair note.
“Back in 2016, there was a case in Mumbai, where a couple had decided to turn a new leaf over and marry for the second time after separating from their previous partners. They created a prenuptial agreement before getting married to each other (even though it is not enforceable by law). Two months later, they split up. The man filed for divorce, on the grounds of the prenuptial agreement and other allegations. When the court released its order, it announced that though our law doesn’t validate prenuptial agreements, it still holds importance and helps the court understand the intentions of the parties involved.
The couple had added a clause stating that they’d settle the matter amicably if things between them go awry or a dispute arises. And, based on this, the man was able to get a divorce from the woman. So, even though a prenuptial agreement is not legally recognised, it can help you in the future.”
But, this got us wondering. What are other measures one can take to protect oneself in a marriage? It seems, there are different versions of the prenuptial agreement or a legal contract that one can consider drawing.
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“The quasi-prenuptial agreement is a good option to consider. But, it cannot include clauses regarding childcare. It has its own guidelines that need to be followed. The name implies that it is an ‘almost prenuptial agreement,’ since prenups are not legally enforceable, quasi-prenup agreements are a better alternative.
Other than this, you can also create a Memorandum of Understanding agreement. And, to protect both parties’ finances, you can consider creating a Family Settlement Agreement. Other than this, you are advised to refrain from creating a sole, joint bank account with your partner. The same rule applies to joint property. Co-ownership should be approached with caution. And, creating a notarised, legal contract should also include details regarding any form of debt both parties are under, Mr. Kesar Singh Sawney tells us.
As an unmarried woman living in India, I’ve had the opportunity to consider different aspects of marriage and come to a personal conclusion that love can still be love, even if something as unromantic as a legal contract is involved. Boundaries are necessary and possible in many different ways within relationships.