JOIN USIndians are enquiring about pre-marital agreements
Will you be open to a pre-marital agreement? A female user asked this question at a poll conducted by an Indian matchmaking app recently. It raked in around 700 votes. The option of ‘Open to a discussion’ led by a huge margin, followed by ‘Yes, it’s a great idea’.
Pre-marital agreements, or prenups, are a foreign concept, most popular in the US and UK. But relationship counsellors and legal experts confirm that Indians are enquiring about pre-marital agreements albeit they are very few in numbers.
Metrolife dialled Delhi-based advocate Gautam Khurana to explain prenups. His firm, India Law Offices, has drafted such contracts for at least five couples to date.
What is a pre-marital agreement?
It’s an agreement where a couple-to-be lays down the terms and conditions of what happens to their financial assets, individual or family-owned, and other aspects of their upcoming life together, in case their marriage breaks down.
Is it legally binding?
In foreign countries, it is. However, the legal validity of prenuptial agreements has always been questioned in India since here, marriages are not contractual in nature.
Still, the terms and conditions of prenups can be enforced as long as they don’t override (the provisions) of various religion-based personal codes for the Hindus (including Sikhs etc), Muslims, Christians. If we pick an example, The Hindu Marriage Act, 1955 already defines how you can divorce, how much maintenance money a spouse needs to pay, or who gets a child’s custody, and so a prenup agreement cannot override such situations. According to Sec 10 of the Indian Contract Act, 1872, an agreement like this shall be valid if it is entered into by the free consent of both parties. But again, Sec 23 of the said Act says any agreement that is immoral or is entered into in contravention with or opposed to the public policy shall be void.
If it is not legally binding in India, then how and where can it be used?
A prenup defines what is your and your partner’s vision clearly. In cases where a relationship turns nasty and allegations of dowry, cheating, physical violence and theft are made, this contract can serve as an excellent source to back your claims.
What is the process to get a prenup made?
An agreement is anything that’s in writing, signed by parties in the presence of witnesses, one from each side. A prenup can be drafted on a stamp paper by an advocate, or on a white sheet of paper at home in front of families and friends.
When did your firm first receive a prenup inquiry?
It was five or six years ago. At that time, the idea of talking about money before marriage was frowned upon. Now, the inquiries are a lot more. However, couples usually don’t come back after enquiring.
What kind of couples are seeking these agreements?
Coincidentally, most of these couples have stayed abroad and have substantial family properties to inherit. They see prenups as a way of insuring these assets against jeopardy.
Two exceptions where prenups are legal in India
1) In Goa. Here marriages are governed by the Portuguese Civil Code of 1867, not by the Indian family laws.
2) Any marriage solemnised under the Special Marriage Act of 1954 along with proper registration of all the documents of declaration at the office of the Registrar.
(Source: India Law Offices)
‘Bengalureans also curious’
Last year, a young couple in Bengaluru had approached advocate Siji Malyail for a prenup. “Such inquiries are really few and come from couples who are living-in,” he says.
Clinical psychologist and relationship therapist Dr Meghna Singhal from Bengaluru recalls two sessions where the prenup word came up. One involved a live-in couple and the other had two divorcees who were looking to start a life together. “It came up during the pre-marital therapy sessions. One couple laughed it off while the other was open to the idea,” she says.
Dr Meghna thinks prenups are a good idea given how ugly most divorces turn out to be, where fights break out over heirloom items, jewellery that the couple bought together to furniture one was attached to.
As for Shalini Singh, founder of Andwemet, the matchmaking app that ran the poll, she believes it’s down to the couple and the belief system they share. “If the concept of prenups works for them, then it’s fine. If it doesn’t work, that’s fine too. Relationships are personalised,” she explains.