Is it time India says ‘I Do’ to prenuptial agreements? Will they make divorces less ugly?

“The time has come to make compulsory a prenuptial agreement to be executed before the appointed authority after counselling of parties about the possible risk of marriage going haywire for a variety of reason.” This was said by family court judge Harish Kumar from the Patiala House Courts, while granting a divorce to a couple who had tied the knot in 2011. The judge’s comments are significant as it throws light on the validity of these agreements. Here’s a better understanding of what are prenuptial agreements, their legality in the country and what’s their standing in other countries. Prenuptial agreements, explained Prenuptial agreements, commonly known as prenups, are contracts signed by a couple before they get married and determines the ownership rights of their respective assets if the marriage fails later. In case of a divorce, the division of assets and alimony payout to the spouse happens as per conditions laid down in the prenup. Prenups typically address issues such as property division, spousal support, debt allocation, and other financial matters. The concept of prenups is western in nature and has been around for years. Some reports state that the oldest prenup dates back to ancient Egypt and is over 2,000 years old. These written or verbal contracts established the property that each spouse would bring to the marriage. [caption id=“attachment_13330102” align=“alignnone” width=“640”] Prenups have become quite a standard practice the world over. Image used for representational purposes only[/caption] A New Yorker report states that prenups that addressed the circumstances of divorce — as opposed to death — did not emerge as a relatively popular legal tool in the US until after the Second World War. As late as the 1970s, when couples did sign prenups, courts rarely enforced them, insisting that prenups promoted divorce by laying out the worst-case scenario in advance. It was a Florida case from 1970, Posner v Posner, which ruled that prenups should be enforceable as standard practice and helped bring about a sea change. Now, prenups have become quite a standard practice the world over. In 2022, a poll conducted in the US showed that nearly 40 per cent of married or engaged people between the ages of 18 and 34 have signed prenups, while just 13 per cent of those between 45and 54 have done so. For those 55 and above, the figure is below five per cent. India and prenuptial agreements Notably, prenuptial agreements are not legally binding in India. This is because Section 23 of the Indian Contract Act, 1872 specifically states that an agreement is considered to not have a lawful object if it is opposed to public policy. An agreement without a lawful object cannot be a legal contract. Contracts governing marriages between persons residing in India are considered to be against public policy and so, not valid. In fact, in India, there are Supreme Court rulings that say any contract which has marriage as an object is null and void. However, in 2015, Maneka Gandhi, the minister for Women and Child Development, wanted prenups to be recognised in Indian courts as a standard legal document. She had even met with the law minister on the same and had called for a consultation on the matter from several stakeholders. However, it’s important to note here that Goa, which is governed by Codigo Civil Portugues or the Portuguese Civil Code (PCC), 1867, recognises prenuptial agreements. Secondly, if you marry under the Special Marriage Act of 1954, with all the necessary declaration documents, a prenuptial agreement may be considered legally binding. But why aren’t prenups legal in India? Jahnavi Dwarkadas, associate partner, SNG & Partners, had one explanation. Speaking to LiveMint, she said: “Pre-nuptial agreements have traditionally been perceived as being against public policy.” [caption id=“attachment_13330202” align=“alignnone” width=“640”] Prenups in India aren’t valid. One main reason for this is that divorces are still taboo in the country and marriages are seen beyond being just a contract between individuals. It is considered a holy ceremony. Image used for representational purposes/Reuters[/caption] One of the biggest reasons why prenups aren’t legal in India is because marriage is regarded as more than just a contractual agreement, unlike in the West. It is considered a holy ceremony, and discussing topics like divorce is generally not seen as appropriate or favourable. In fact, divorce is still rare in India – the country has the lowest divorce rate of just one per cent, compared to Portugal’s 94 per cent. But it seems that attitudes are changing. Earlier in October, a family court judge in Mumbai had said that while a pre-nuptial agreement was not legally enforceable, it could be considered just to understand the intention of the parties. Status in other countries Countries such as the United States, Canada, Australia, France recognise these marital contracts and they are enforceable. Traditionally courts in England gave little weight to a prenuptial agreement, and have viewed the enforcement of prenuptial agreements as being against public policy. However, the view is shifting and now English courts are saying that a prenuptial agreement can be a material consideration when considering what adjustments to make to a divorcing couple’s financial circumstances on divorce. In China, a prenup is considered taboo, because it indicates distrust between a couple. Critics of the legal agreement say it runs counter to traditional Chinese values, because in China marriage is about love, selflessness and sharing, while a prenup is seen as a step toward divorce. Even lawyers themselves don’t agree on prenups. “I wouldn’t sign a prenup myself,” Li Ping, a partner at the Beijing Yijia Law Firm was quoted as telling South China Morning Post. “After all, marriage is about love, not money.” [caption id=“attachment_13330232” align=“alignnone” width=“640”] Singer Beyonce and her husband rapper Jay Z have signed a prenup. According to reports, she gets $5 million for each child they have together. File image/Reuters[/caption] Celebrity prenups that made headlines And while prenups aren’t valid in India, they have often been the source of news as Western celebrities have inked the weirdest ones. In fact, when Amazon co-founder and billionaire Jeff Bezos split from his wife MacKenzie Scott, the fact that he didn’t have a prenup made bigger news that the split itself. And this move cost him $38 billion. Pop singer Justin Timberlake and Hollywood actor Jessica Biel have signed a prenuptial agreement which stipulates that the pop star has to give Biel $500,000 if he cheats on her. In the case of Michael Douglas and Catherine Zeta-Jones, the latter gets $2.8 million for every year that she was married. And if Michael cheats on her, she’s entitled to a $5 million bonus. And this is rich! Beyonce and Jay-Z’s prenup states, according to Business Insider, that the queen of pop gets $5 million for each child they have together – whether they get divorced or not. Moreover, Beyoncé would earn $10 million if the marriage ended before two years, and $1 million each year that they remained married, up to 15 years. Interestingly, when Mark Zuckerberg and Priscilla Chan decided to move in together after graduating from Harvard, the two signed a contract, which required the couple to have a date night once a week and spend 100 minutes of alone time together weekly outside of the office or their home, according to the book Once You’re Lucky, Twice You’re Good. With inputs from agencies