Pre-Nups Could Make Divorce Smoother And Marriages Stronger, But Is India Ready?

01/12/2015 8:35 AM IST | Updated 15/07/2016 8:25 AM IST
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The Bride and the groom holding hands as a part of their wedding ceremony as seen in a traditional Bengali wedding. The 'Ghot' or earthen pitcher seen below is sacred and part of the ceremony.

About three years ago, I mooted the idea of pre-nuptial agreements, saying that they'd cut down the drama associated with divorce -- women wringing their hands and claiming to be short-changed and men thumping their chests and proclaiming their wives to be money-grabbing witches who have done nothing to earn their keep. It's funny how men think that any money given to the wife is exorbitant and tend to travel back in time to the 1970s when it comes to estimating expenses.

Now that Maneka Gandhi, Union Minister for Women and Child Development, has brought the subject of legal pre-nups to the centrestage, let's take a look at what such a move will entail.

Legally speaking, Section 2(h) of the Indian Contract Act 1872 defines a contract as an agreement enforceable by law, yet it nullifies all contracts with respect to marriage or which has marriage as a consideration.

"Pre-nups may actually be helpful in saving marriages because one would know the financial implications of a divorce right from the start."

Up until now pre-nups had no legal standing, because according to the law in India marriage is not considered as a contract. It is treated as a religiously sanctioned bond.

Technically, a pre-nup should be extremely simple to formulate legally -- both parties decide on the proportionate division of wealth and assets before marriage in case there is a divorce. The latter half of the sentence is what is going to be socio-legal hurdle in the easy implementation of pre-nup agreements.

In India, where we still think marriages are made in heaven and divorces are a new fangled invention of evil lawyers and influences from the amoral West, there is a great resistance even to the idea of divorce - it is difficult to accept that a union that was to last for seven lifetimes couldn't even make it to one. In such a scenario, how on earth will we promote a socio-legal acceptance of pre-nuptial agreements that are based on the premise of a breakdown of a marriage even before there's been a wedding? Can you imagine the families of the "boy and girl" meeting over cups of tea to discuss flower arrangements and the wedding menu along with who gets what in the event of a divorce? It's seems like a pretty impossible scenario in a country where divorce is highly stigmatised and where most people shudder at the very mention of the word.

When this is the mindset, then how will pre-nups be implemented in their true spirit?

The legal implementation of pre-nups, as I mentioned before, could be quite simple. To give you an illustration of pre-nups drawn from the West -- if the husband's net worth is Rs 20 crore and the wife's is Rs 5 crore they could mutually decide the financial consequences of a divorce. Time and other variables would determine the financials so let's say that should they remain married for five years they could decide that the wife gets a payout of a lump sum or a percentage of the husband's wealth in case of a divorce.

This mathematical calculation seems very stark and cruel and can itself be a deterrent for the easy implementation of pre-nups in India. But if we start thinking pragmatically and work towards accepting the idea, we'd save the courts a lot of time and burden. This is because when a marriage breaks one of the most bitterly contested aspects is financial settlements; if these were to be pre-decided the disposal of cases would also be faster.

Besides, women would not have to go through lengthy and expensive court battles to get their due financially. It would also work out very well for the men as they would also not have the fear of losing out to potentially unreasonable demands. It would be a fair and transparent method of dividing assets between the spouses regardless of your socio-economic status.

"Women would not have to go through lengthy and expensive court battles to get their due financially... men would not have the fear of losing out to unreasonable demands."

I also think that pre-nups may actually be helpful in saving marriages because one would know the financial implications of a divorce right from the start, and not act on impulse or on the advice of relatives, many of whom nowadays seem to specialise as financial advisors misguiding women with promises of easy money in the case of a break-up. The wife would be less likely to be carried away by the idea of staking claim to the husband's imagined wealth and may see it is better for her to work on saving the marriage. Similarly, a man would be aware of the financial cost of a divorce and will be less disposed to treat the dissolution of a marriage casually.

I have purposely stayed away from speaking about the emotional trauma of a divorce since that cannot be translated into financials and no amount of money can compensate for it.

Pre-nups challenge the domain of personal (religious) laws in marriage; the diversity in these is what is going to be a big hurdle in the easy implementation of a pre-nuptial agreement and we'll need to see a big cultural shift in the social, legal and socio-legal mindset for them to become a reality in this country.

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