Prenuptial:   What are they and how to ensure they are enforceable in India ?

Prenuptials are enforceable guidelines ,contrary to popular perceptions it is not only about financials but is much more.  

It is well said that you might love blindly but get into marriage with your eye completely open (Guys I do not mean with popping eyes while looking at your to be)

Prenuptial agreement is more likely to stand up if it meets the following conditions:

 

1. The Agreement should be fair, and duly acknowledged.

2. The Agreement should have attorney certification from both parties as well.

3. The Agreement should have clause stating that if any provision of the agreement is  
     invalidated, the rest of the agreement still remains in effect.

4. There should be listing attached showing each spouse's assets and liabilities.

5. The Agreement should have all the clauses of agreements arrived at between the
     prospective spouses.

6. The Agreement may also contain the necessary history of proposed alliance.

7. The Agreement should be reviewed by separate lawyers and duly certified by them.

8. The Agreement should be setting out each party's assets, debts, and property rights before the marriage, settling issues of division of property and of spousal support in the event of marriage breakdown.

 

 

However the prenuptial agreement may at least check some false prosecutions by unscrupulous

Women, who are misusing Section 498A or Domestic Violence Act of IPC for blackmail and Extortion of money, as well as it will reduce the fraud or honeymoon Marriage by Men.

 

That means, if the both party are genuine, transparent and do not have any pre-planned ill mind, will accept the same before marriage itself.

 

The Prenuptial Agreement cannot counter Section 498A IPC at all, but may reduce the damage

Caused by misuse of the law by Legal Terrorists.

 

Some of those people, who refuse to see dangers and consequences of false 498A or Domestic Violence Act cases and brush aside the truth, thinking nothing is going to happen to them, may find this as cheap insurance policy like medical Insurance, which is not very popular in India.

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It has got three Modules:   Entry Module, Operations Module, and Separation Module .

A. Entry Module:

Examples of preconditions:
1.HIV tests 
2.Horsoscopematching  
3.Proof of age 
4.Passport copies, getting a passport
5.Proof of educations
6.Trial Period 
7.Mode of calling of the marriage.
8. Expense sharing for preparation of marriage 
9. Expense sharing or compensation incase of calling of the marriage
10.Gift register (setting limits)

B. Operations Module

1.Lifestyle
   Example: How will the various items required for running marital will be bought 
          1. Car (who buys or who rents)
          2.house
          3.Furniture..etc.
          

 What percentage money will each put for common pool also called as marital pool .
How will the common pool be operated (either or both)  
What happens if one person puts from their pool into marital pool is it to be treated as gift or a zero percent loan to the other spouse. 

Example: if a husband becomes unemployed then the wife would put in some money is it to be treated as marital expense or loan to the marital pool) 

 Who gifts what to whom, setting the limit of yearly gift from close relative (for eg:- in first Diwali the girls parent usually gift .Limits can be set on what can be received. ) 

In case of financial despair acceptable sources to tap and the modalities.

2. Definition cruelty: You are setting certain expectations from your spouse here as all the Indian marriages act says mental cruelty depends in the conditions. This gives you a chance to clearly define these are a not acceptable and this are acceptable to some extent, also you can grade it to cruelty, violence and crime.

3. Household chores (cooking, cleaning etc)

4.Child planning (when, how many, where)

5. Define exception conditions (Example if the couple cannot conceive then adoption or surrogate or intravital ) 

6.Rules of staying away ( Transfer ) 

7.Rulesof abortion ( Either or both )

8. Rules of meeting parental obligations ( in-house, in complex etc )  

 

C. Separation module  

Define the alimony ( indexed on wholesale Price index, index on income , limiting alimony based on tax limits etc ).
Define the shared parenting responsibilities ( residence , schooling , clothing , food. Mode of collection of the Childs needs).
Define the rules for division of marital property (Operation module defines how the marital property will be accrued).
Define residential rules for children.

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Did you know that  Prenuptial can be made enforceable in the Indian courts ?

Now as I was discussion  to a smart retired judge ( who doesn't )  want to   be known  and asked him if a Prenuptial agreement was valid in the court of law .He smiled "why not "and said my opinion under the current law it could definitely be valid,  if you follow certain procedures .

The way to do it is to file for declaration of marriage in the family courts under the "Special Marriage Act" along with your documents, witnesses and the deed of Prenuptial.

That would be treated as your engagement.

Take next date and solemnize in the family court in the next date.

Orders are passed and you are declared married.

With this document get the whole order registered in the Registrar office and you have married with an enforceable prenuptial in courts .

But he says such a prenuptial is very likely to be enforceable as the courts have married you by accepting the prenuptials.

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Not necessarily disclosure has to be made rather a declaration has to be made that the other party does not care about the other persons pre marital assets. 

A marital pool has to be defined regardless of assets.

The Prenuptials stand a very good chance of enforcement in India if the prenuptial is certified by the court easily and with open mind and this is possible in the "Special Marriage Act" where in the magistrate goes through all the documents and then declares the marriage based on those. 

A magistrate can refuse the marriage in certain circumstances. eg: if one of the spouses is below the age of marriage the magistrate can dismiss your petition for declaration of marriage or if the magistrate feels the some clauses are unfair then also he can dismiss but once the magistrate has accepted the prenuptials then for demanding money or anything beyond prenuptials the onus is one other party to prove additional circumstances. 

People think that prenuptials are just two to three pages .Nothing can be far from the truth. A good prenuptial is at a minimum of 40 to 50 pages.

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SIF initiates new program: Background checks of prespective bride before Re-marriage.

As the volumes of calls on the all India helpline grew steadily there was small but persistent team asking:  How do I know whether my future bride is reasonable or unreasonable?

By 2007 we decided to pilot the background check process.

Bangalore is truly global city . No city can be called as global city without there being a strong  group fighting for father rights and men’s rights and that too in a progressive not traditional manner.

Our sifting of data provided a slightly better  significant hypothesis that working women are better marriage material .

 

Now this may come as a surprise to many media folks or just public that financial independence makes a women go for divorce 498a etc. The reverse seems to be true a financially independent ( on your shrama dhana not yama dhana , prema dhana or the rakshasha dhana of settlement ) is marginally more able to make herself more satisfied in married life . The second she does not have any incentives of breaking marriage the way a non working wife may have.

 

The fact is borne out that there is a lack of trust in our legal structure ( law makers , law executioners and law and order maintainers ) by husbands.

All components of the legal systems have to address this issue of faith amongst the husbands and convince where they are right and correct where they are wrong. An impatience is also growing at the bullock cart system where in today all the cases reported in justice where in the supreme court said that for making false dowry case a divorce can be granted are all from 20th century .

In a reasonable that supreme court should be deciding on cases which started in 2003 or 2004 .

• Which means the question arises how do I protect ?

Law has nothing to protect me- the husbands refrain .

A false dowry cases filed , went to jail for 15 days , parents went for 7 days and after 12-15 years came the supreme court that I am entitled to get divorce . Isn’t that too long ?

So we took out ten cases in 2007 and conducted the back ground check .

The background check was requested by 9 prospective grooms and one prospective bride ( whose boyfriend refused to commit saying that she must have done something wrong) .

It was done is non hush manner in which the bride was told that she needs to co-operate in the background check .

• 3 bride backed out who had said that they had not filed 498a admitting that they had filed 498a . A clear hiding of facts and they got filtered out .

Out of  7, 2 succeeded fully and 1 provisionally the remaining four  failed the background check for unreasonable behavior.

• Three furnished there details of their place of their stay and husbands stay but we were able to find out in one case that she had actually filed a 498a case in a different state . She did not recognize that we would  be doing a check in the appeals database of high court.

She thought we will just check the last marital place , place of marriage and  her working place. We actually checked the place of her highly placed aunt'ss high court database and found an appeal . Falsification of information is a major no no .

The other 2 we found an unreasonable 498a .The two we could not find the details of any 498a. Our resources are not strong enough to look into every court ..

• The two who succeeded also did not have the details 498a .

SO now we are down to 4 from 10.

We then asked to produce the details of the divorce settlements. Out of 4 three had reasonable settlements.

The one with unreasonable  settlement was knocked .

So we went to the next steps: were they reasonable in their process of using the law?

Out of three one was found to be making exorbitant claims on the shrama dhana of the husbands.

• That left last two women standing and got an unfettered  thumbs up and found the two both were working !!!!!!!!

One had taken money as settlement but had been asking reasonable amount from the beginning  .

The one who had made exorbitant claims was given conditional approval with the understanding terms and condition of the marriage be drawn up ( pre nups called in ) and court marriage be done on those terms and conditions.

• Why a low success rate ?

I think this is the question for lawyers and lawmakers to answer why they promote unreasonable behavior ?

• Who was the girl who was one who herself suggested that a background check be conducted,it was the same girl who only conditionally passed.

She thought that SIF will look at only the 498a papers and was confident . But agreed that her lawyers and everyone around her basically drilled and shamed her to fight unreasonable because after all she could have put her ex husband in jail and didn't. We pointed out that 498a is not the only unreasonableness that we look at .

• It is the entire set of behavior during marriage break up that we look at .

What were the characteristics of the guys ?

3 out of 10 were never married and had fallen in love but were plagued with doubts because they could sense some kind of unreasonable behavior .

Did everyone follow our advice . Yes they did to our limited knowledge . We did not follow up .

We have gained a strong understanding of how to access the databases , how to do a background check .

• After all how reasonable you are in breakup is the best indicator of how reasonable you will be in second marriage.

And Guys cannot afford not to do a background check because the law and law execution the way it stands is currently unreasonable towards husbands. 

 

• So welcome now we have started the background checks in more earnest our methodology is built and the version 1.0 of background check is now available .

The expertise and guidance and evaluation is free of cost .

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No name have been disclosed for the simple reason that it is important to respect the privacy of the individuals concerned in their family life’s

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Surviving break-ups: Is a prenup for you?

Marriages maybe made in heaven but painful break-ups and ugly divorces happen here on earth. Things can be a lot worse if financial insecurities are added to the emotional trauma and you are left near-bankrupt – just because your loving spouse has walked away with every hard-earned penny you have struggled to save for a future "together".

So, what is the solution? Is it possible for both partners to have a "fair" deal, should they decide to part ways? The answer is, obviously, YES. But it is possible only when you go for a prenuptial agreement before tying the knot. Even starry-eyed lovers should consider it. Because it is a good way to safeguard your financial interests in case your marriage gets a beating.

What is a prenuptial agreement?
Simply put, a prenup is a pre-marital agreement between two people for the fair division of money, property or assets in case of divorce or death. It should also spell out in clear terms what you intend to do with the assets acquired at the time of your marriage or after it. Although a court of law can ultimately settle these issues, many couples want to get it done even before the bonding happens – not out of any compulsion but because it makes them feel secure and totally in control.

There are many other benefits of a prenup: it can protect you from your partner's debt loads; prevent your business/estate from getting divided; ensure spousal support in terms of monthly maintenance or alimony; guarantee remarriage rights and take care of child support and custody issues. All it requires is free consent and an honest declaration of individual assets and liabilities.

But the crux of the matter lies elsewhere. Unlike most countries where a valid prenup is legal and binding when a couple separates, the Indian legal system does not recognise this pre-marital agreement. In fact, the concept has gained wide social acceptance over the past five years but till date, it is not a legally valid pact as per the laws of our country.


So why opt for a prenup?
Unlike popular belief, a prenup pact is not meant for the rich and the famous alone. Satyam Chanda, a market research analyst from Bangalore, found it out the hard way when his marriage broke up after two years and his spouse tabled a whopping claim for Rs 50 lakh or part ownership of his ancestral house near Indira Nagar. A die-hard romantic, he has never thought it necessary to opt for a prenup and is currently contesting a messy divorce suit in order to escape insolvency.

For Anuradha Thakur, a primary school teacher with two kids, the story has, however, reversed. She literally goes from pillar to post to get the pittance from her 'ex' who has conveniently gone abroad and also remarried.

Although all matrimonial laws in India have provisions for a wife's maintenance and alimony (under the Hindu Marriage Act, however, either party can claim it), the amount payable ALWAYS depends on the partners' income, property and other circumstances. So it might have helped the above couples, had they declared their assets in the very beginning, reviewed their financial positions and agreed to a mutually acceptable division of wealth. This is the primary reason behind drawing up a prenup – so that you may have a fair idea about what to give and what to receive.

In spite of lacking legal sanctity under Indian marital laws, a prenup can still be treated as a valid contract if you and your spouse consent to go by its terms and conditions. And this will definitely help as you would not end up paying exorbitant divorce settlements or face a duped-out-of-compensation situation.

"Prenuptial agreements are not deemed valid under the Indian law defining marriage and won't be upheld by any court," says Kolkata-based lawyer Subrata Ghosh. "Even if you opt for a prenup, it can only fall under Section 10 of the Indian Contracts Act and won't be held valid when it comes to divorce settlements."

According to Ghosh, there are bound to be big loopholes in such an agreement even if it gets legal recognition in near future. "To begin with, it is not inviolable and can be easily contested in a court of law. So you can never lock in a partner in a prenup and feel secure. What's more, the asset status at the time of marriage may not be the same at the time of break-up and either spouse can dupe the other if he/she so wishes."

Lawyer Nandita Behl holds a different view, though, and encourages couples to go ahead with it. "For one thing, it may help recover the so-called "dowry payments" that a bride brings, if both parties agree to declare the assets. Also, courts do take cognisance of a prenup if it is created by mutual consent and has enough clarity regarding assets division."


Is prenup anti-love?

While the debate about its legal validity continues, we look at the emotional feasibility of a prenup, which is often seen as a mark of mistrust or lack of commitment. When Delhi-based businessman Kaushal Tanwar asked his fiancée Shirin if she was comfortable with the idea of a prenup, he was met with a disbelieving look and a shocked silence. For Shirin Nair, an art student, it amounted to a pre-mature divorce decree as the guy in her life seemed to be cutting her out of home and hearth, wealth and comfort, even before the relationship culminated into marriage.

"She felt I did not love her enough and would not like to continue with the relationship after a few years," recalls a bitter Tanwar. "In reality, it was a compulsion for me as I could not divide the family business. Also, I wanted to be sure that Rajni is marrying me for who I am and not for my money. But she could not accept it and simply walked out."

Although a prenup is often viewed with misgivings, there is a flip side to it too. "It is a more humane thing to do it now, before marriage, when we have best thoughts and best interests in our hearts," explain Dr. Tia Rege and Dr. Srikumar Parekh – a soon-to-be married young couple working in a Mumbai-based healthcare facility.

"There's no lack of love or emotions between us. Neither do we think that marriage is a contractual bonding minus trust," clarifies Tia. "But even the most romantic relationship may not last and we don't want to hurt each other just because we cannot be together till the journey's end."


What are the key areas?
Although a prenuptial agreement can be as brief or elaborate as you want, one must focus on the following key areas to make the whole thing successful.

Are you wealthier than your partner? Or earn more? Set a limit to the maintenance/alimony amount with the help of a prenup and rein in demands.

Are you poorer? Do you require spousal support to cope with career breaks (due to babies, illness and so on) or divorce? Negotiate now to get adequate financial cover.

Do you have a heavy debt load? Or is it your partner? One need not bear the financial burden of the spouse and a prenup can ensure this.

Are you not too keen to share your business/estate/heirlooms after the marriage ends? Without a prenup, your spouse can claim a fair share and you can't say no.

Ensure an equitable division of all assets and properties, both separate and jointly held, should you decide to part ways.

Is India willing?
"You can't change the society overnight but prenups are certainly getting popular in India, especially in the metro cities," affirms Devika Batra, a social analyst from Mumbai. "Around 20-25 per cent couples opt for some kind of pre-marriage settlement as it gives them great peace of mind and makes them feel strong enough to handle all unforeseen circumstances," she informs.

So, there you are. As legal adviser Neha Chaturvedi puts it, a marriage is not just an emotional and physical bonding but also a responsible sharing of financial rights and obligations. A prenup, too, is no longer viewed as a pre-planned exit strategy or a convenient tool to deprive the spouse. In fact, the deed and the discussions associated with it help spell out the partners' expectations and thus ensure the well-being of the relationship.

It can be scrupulously fair and, most importantly, it scripts the honesty, care and commitment you have in your heart for your would-be spouse. So the next time your partner asks whether you are ready to tie the knot, along with a prenup, will you be willing to say 'I do'...

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