Should prenups be given legal validity in India?

Should prenups be given legal validity in India?

Introduction:

Prenuptial agreements or prenups, a legal contract between the couples prior to the wedding regarding division of property and other rights in the event of divorce or separation, is still not recognized in Indian laws. In many western countries this practice is popular and encouraged to prevent bitter consequences in case things don’t go as planned.

Rich in India go for agreements of this kind under the Indian Contract Act but since it is not legally upheld in courts, no significant assessment is made in accordance with these contracts leading to unnecessary and unpleasant consequences later. Giving validity of prenups would not come easily in India because of the orthodox thinking surrounding the debate but if it could really solve post-divorce issues, it is worth a consideration.

Yes:

1. Too much time and money is wasted trying to settle distribution of wealth and property between the separating couples. Pending cases of divorce and related issues are in exceedingly large number in today’s times when marriages are at the risk of breaking up easily, with mutual consents in case the couple finds out that they are not so compatible with each other years after marriage. Divorce cannot be avoided in many cases and then the dealing with issues of distribution leads to lot of unnecessary disputes. This could be avoided if prenups are given legal validity.

2. Live in relationships are flourishing on a greater level now in India. Society can cry foul for all it wants but that is not stopping couples from engaging in relationships of their choice. The same applies for gay and transgender couples. They might contribute equally to the making of the home they share but when they breakup or separate, one of them is at a disadvantage and they do not have much assistance of the legal nature to support their claim. A prenup would be the ideal rescuer in this kind of situations.

3. Women in India, especially from the underprivileged section find it really difficult to get financial support from their spouse after divorce. The long impending process of legal aid in these cases do not work for them. They abstain from getting involved in legal cases and hence do not get their rights to financial support of parental custody of child. Encouraging couples to go for prenuptial agreements before tying the knots would definitely help them.

4. It is always easier when the partners know what to expect from the other in case their marriage doesn’t work. They could be prepared for it, if such situations arise. Couple would try to settle their matter if they are not prepared to adhere to the list in the prenup. This could save marriages at the verge of breaking up. It would make relations more secure. Parents of girls would not live in the fear of their daughters getting into bad marriages.

5. Having ground rules for important matters is a good thing even if it calls for legal agreements. The couples do have a right to know what their personal rights to property are in a marriage. It is said that in a marriage, both the partners are equally entitled to everything they share but when it comes to separations, this matter leads to chaos in an environment already surrounded by issues leading to end of marriage. A prenup would make it clear from the very beginning and would avoid issues later.

No:

1. Marriage in India is not seen as a contract and hence surrounding it with legal implications in the aftermath of breakups is a negative concept for us. Anything that bounds marriage with the anticipations of divorce and distribution of wealth after that would not be accepted by people who are into the concept of fasting and praying to get the same spouse in next lives if there are any reincarnations.

2. It is mundane to bring in financial agreements and property distribution lists at the start of a relationship. Couple do not want to start their marriage with a list of things they would want from the other in case they go for divorce later. It is not romantic. A newly wed pair or would be couple will try to abstain from anything that makes their relation bound by monetary and objectified clauses. Even if prenup is given legal validity in India, there would not be many who would want to engage in making of this agreement, diluting the very reason behind the legalization.

3. Prenuptial agreement is only for the born rich or those who have already achieved enough at the time of their marriage. For common people, property decisions, estate owning, monetary planning and other such financial responsibilities come years after marriage. There is no point in making prenups when the couples do not really know what they would build up in times to come. There is unpredictability at the start of a relationship and the couples do not really know a lot about each year. Agreeing upon prenups at this stage is unnecessary and unpleasant.

4. We already have laws to protect the rights of woman and children. Most importantly, we have personal laws for each religion and each of them goes by their own beliefs and concepts of marriage. Some believe in alimony while others are strictly against it. In a diversity like ours it is difficult to decide upon one set of rule binding every section of our society. The Contract Act is enough to protect the rights of couples and adding the implications of prenups would only complicate it.

5. Life is very unpredictable and no one can actually be sure about what would come after some years. Circumstances that would be valid during the making of the agreement would become difficult after a few years. This would only create burden on the spouse and they would simply find ways to avoid divorce even if the marriage isn’t working.

Conclusion:

Looking at the rising divorce and separation rate in India, it seems that legal validity to prenups would be a welcome change and the social stigma attached to divorce might find an exit in the process. Society needs to accept that couples can fall out of love or marriages sometimes are not meant forever. Prenups can solve the problem of long lasting battles in divorce settlement cases.
However, many people would find it unpleasant to discuss money & property even before the relation is established. Even after this matter makes to see the light of day, many people might just not pay heed to it.