Delhi-based Amit Noronha (name changed on request), 38, was more cautious when he tied the knot for the second time this year. Noronha and his new wife went in for a pre-nup — an agreement or contract entered into before a marriage by the two parties. The terms can vary but generally include provisions for property division and spouse support in case of divorce.
In Noronha’s case, the contract was a full disclosure agreement, in which he listed his property and business details, divorce documents, differentiated personal assets from his family. He added a clause that no dowry was exchanged and that no false claims would be made if the marriage broke down. This ‘memorandum of understanding’ which amounts to a pre-nup was signed by both sides, including the immediate families who were consulted on the drafting. “When the divorce happened, Noronha's ex-wife charged him with the dowry law under 498(a). He had to spend a few nights in jail. She also laid claim to the house which belonged to his father.Later, they had a settlement where in return for giving up visitation rights of his daughter he didn’t have to pay alimony," explains lawyer Ranjay N, who handled Noronha’s pre-nup case. "The second time round Noronha decided to take precautions," he says.
The trend of pre-nups in India is a slow trickle, say some lawyers. With financial independence and equality increasing among the upper middle-class, people want to avoid the hassles of long divorces. “With stakes becoming higher, pre-nups are being drafted to save assets,” says Supreme Court lawyer Pinky Anand. “Pre-nups are happening more among the once-bitten-twice-shy lot, rarely among those going in for a first marriage” adds Geeta Luthra, Supreme Court advocate. “The ones going in for second or third marriages, don’t want to lose their assets and are scared of their parents being implicated in dowry cases. Today, people are getting more insecure. If someone is marrying a person from a different economic background or there is great disparity in age and finances, or they’re unsure of the partner’s fidelity and commitment, they may opt for a pre-nup to secure themselves,” she says.
However, in a society that holds the institution of marriage in a great deal of sanctity, people are still hesitant to talk about pre-nups or bring it up with their spouse-to-be even if they want it, says Luthra who gets about two cases on an average a year. “Pre-nup also means it becomes a ‘contractual cold-book marriage’, with the element of trust on the lower side,” she adds.
Most clients who come in for a divorce almost invariably ask if there are pre-nups in India, says Ranjay, who has been getting about 10 queries a month since the last couple of years though they have barely translated into one or two cases a year. “People think pre-nups are an easy way out of disputes and saves them the stress of litigation,” he explains. The idea of going in for a pre-nup is still new, and most queries come from “financially and socially-independent professionals, in their 20s and 30s”.
In the United States, pre-nups are recognised and can be enforced. But in India, pre-nups hold no legal sanctity, that is, they are not enforceable in the court of law. Pre-nups are drafted under the Indian Contracts Act, and are treated like any other contract. With more marriages breaking up, lawyers say pre-nups, at best can act as a buffer in divorce cases.
Goa is the only state in India that recognises pre-nups. “Under the Goa Marriage Act, all assets automatically get shared equally after marriage,” says legal consultant Colin Fernandes. “I handled a pre-nup for a woman in her mid-30s last year who got married to a man less wealthy than her. Her mother had expired and left her a lot of money. The terms they agreed upon were that neither of them would lay claim to wealth and assets both had acquired prior to marriage,” he says. The trend is seeing an increase in the last five years. “Though orthodox Goans would probably never allow a pre-nup, it’s acceptable among the younger generation that’s doing well and becoming independent,” says Fernandes.
Most lawyers feel the concept of pre-nups will take a while to catch on in India. “Pre-nups in our country work right now for strong women with a sound financial backing. Most women are not the strong party. We keep liberalising the divorce law without protecting the women. When they start becoming stronger, pre-nups will make sense,” says Kirti Singh, former member of the Law Commission. “Pre-nups suit the one who holds the key to money. Who holds that key in our country? Men. It’ll end up working for them,” says SC lawyer Meenakshi Lekhi.
For some, the foresight of getting a pre-nup even borders on cynicism. Delhi-based finance professional Mayank Tiwari, 36, who’s open to getting hitched the second time round sounds like former Beatle Paul McCartney (who declined a pre-nup for his third marriage last year) when he says love scores over pragmatism. “Pre-nups are an insult to the love a couple feels for each other and to the foundation they’re building the relationship on. If I had to consider a pre-nup with someone, I probably wouldn’t go ahead with the relationship,” says Tiwari.