Friday, 18 September 2015

WCD propose Marriage Contract Law like Prenuptial ?

When I came to know from various news that present WCD minister working with a module in the name of marriage contract or popularly known in rest of the world as Prenuptial agreement, remind me in 2007 itself I send a mail about that to them, which was put in dustbin.

Prenuptials agreements have been finding their way into marital unions in India too, but there's a problem: Indian law does not recognise these pacts, rendering them useless. Now Maneka Gandhi's Ministry of Women and Child Development has initiated moves to change this.

It is outlining modalities for introducing prenuptial agreements into the existing legal system as an option for couples.

Now, my concern , hope this proposed law also should not be anti-men , like we witness they had done in earlier domestic violence act, work place harassment act, where the word person was replaced by women and spouse was replaced with husband. Hope this time also the same should not happen.

So, the question how it should be the proposed Marriage Contract Law of India and how it can be enforceable in India?

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

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.

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 .

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.

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

A. Entry Module:

Examples of preconditions: 

1.HIV tests
2.Horsoscopematching (Optional)
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 in case of calling of the marriage
10.Gift register (setting limits)

B. Operations Module

   Example: How will the various items required for running marital will be bought
          1. Car (who buys or who rents)


 What percentage money will each put for common pool also called as marital pool.

How will the common pool be operated?

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 .Limits can be set on what can be maximum or minimum limits.

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.

 How to enforce such Marriage Contract or prenuptial agreement in India ?

Now as I had 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 it could definitely be valid, if you follow certain procedures and amend the Present contract act along with a note in all Marriage related law the previous agreed Marriage contract to be considered as valid.

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.

A marital pool has to be defined regardless of assets.

The prenuptial agreement in India 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. 

Just Married !!

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 prenuptial agreement in India then for demanding money or anything beyond prenuptial agreement in India the onus is one other party to prove additional circumstances. 

Don’t think that prenuptial agreement in India are just two to three pages. Nothing can be far from the truth. A good prenuptial may go to 40 to 50 pages.

There is no grantee such contract give 100% success of your married life, but at least be honest , be transparent to your would be spouse , which you perceive to do at present verbally , it’s time to get documented.


Shanti Swaroop Gangalakunta said...

Yes, I fully agree with the comments by Swarup Sarkar on Pre-Nuptial Agreement (PNA) because PNA provides financial support/protection to both wife and husband in case of a divorce/failed marriage there by promoting human rights, scientific temper and gender equality.

I also believe all the below 10 steps are mandatory for anyone before getting married.
1. Pre-Marriage Education (PME)
2. Pre-Marriage Health Evaluation (PMH)
3. Pre-Marriage Financial Compatibility (PMF)
4. Pre-Marriage Written Communication (PMW)
5. Pre-Marriage Counseling (PMC)
6. Pre-Marriage Legal Awareness (PML)
7. Pre-Marriage Verification (PMV)
8. Pre-Marriage Academic Compatibility (PMA)
9. Pre-Marriage Lie Detection (PML)
10. Pre-Marriage Nuptial Agreement (PMN)

• What’s Pre-Nuptial Agreement (PNA)?
PNA is a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. PNA is applicable to low, middle, high income levels and is mandatory before any marriage, so that both parties are financially protected should the marriage end in a divorce/ failed marriage. Pre-marriage counselor helps in preparing and finalizing the PNA document. A copy of PNA should be distributed along with wedding card by both parties before marriage.

Lily Dove said...

PNAs must be encouraged. It gives both the parties in the contract security and feeling of responsibility. Good post.
Pre-nuptial agreement Lawyers Sydney