Negotiations before the knot PDF Print E-mail
Thursday, 01 March 2018 05:47
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Sarthak edit

With the divorce rate climbing in India—it was 13 in 1,000 in 2015 compared with 1 in 1,000 marriages in 2005—the splitting of assets between a couple has become a pertinent legal question. Many developed nations, including the UK, Canada, Germany, etc, rely on prenuptial agreements for settling these questions without the couple having to ask the court to settle it. The latter option is usually a long-drawn and bitter affair. In the US, where more than half the marriages that take place end in divorce, couples are reported to be increasingly choosing the prenup option over court and non-court mediated settlements after a divorce—there has been a five-fold increase in the number of prenups being signed between 1995 and 2015 in that country. In contrast, in India, prenuptial agreements are neither legal nor enforceable. To be recognised as enforceable contracts, they need to be held valid under the Indian Contract Act, 1872. While the Hindu Marriage Act defines marriage as sacramental, under Muslim personal laws, it is a civil contract. Muslim women, on paper, have the protection of mehr (money paid to the bride) upon the dissolution of marriage. On ground, in most cases, the mehr settled upon is a pittance and is more for the sake of appearances.

At the same time, under Section 40 of the Divorce Act, 1869, pre- and post-nuptial agreements are subject to court decrees. So, while, in Bhagwati Saran Singh vs Parmeshwari Nandar Singh, the Allahabad High Court held that “Hindu marriage is also a civil contract entered into by two persons, in addition to being a sacrament”, there are Supreme Court rulings that emphasise that marriage can’t be an object of any contract. Prenups are also treated as unenforceable agreements since either party may be required to sign away the right to legal remedy in the division of the marital estate after the dissolution of marriage. Under Section 28 of the Contract Act, any contract “by which any party thereto is restricted absolutely from enforcing his (her) rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals” is void.

Against such a backdrop, the government proposing to relook the validity of prenups is a welcome move. The women and child development ministry had first mooted this in 2015, writing to the law ministry. Recognising an instrument to create and manage a marital estate, including its division should a marriage fail, will benefit millions of women in the country. Divorce cases, including the splitting of property and awarding of alimony, take an average of four-five years, as per legal experts cited in various news-reports. There are, of course, cases that drag on for decades. Giving couples a way to avoid long-drawn battles over alimony and division of assets, through a contract negotiated amicably before the marriage, could not just be empowering for them but could also help de-congest the short-staffed Indian courts.



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