In sickness and in wealth?

Rashi Mehra*, a 30-year-old advertising executive in Mumbai, recently filed for divorce from her husband of three years. Though the divorce proceedings have started, Mehra is weary about the lengthy time taken for litigation, especially since her position as an account manager means she spends at least 10-12 hours at work. “Since most of the issues that need resolution are financial, things would have been so much simpler if we had a prenup-like agreement before we married,” she rues.

Prenuptial agreements, where to-be-weds enter into a contract deciding the division of property and assets in the event of a separation, are quite popular and legally acceptable in several Western countries. In India, the question of prenups has only been raised recently, especially in urban areas where high-stress lifestyles, growing financial independence amongst women and wealth usurping have become commonplace.  However, the agreement is not valid in court. 

“Prenups are not valid in India as of now since they go against the provisions of the Indian Contract Act, 1872,” says advocate Fazaa Shroff-Garg.

But there is a way out.
 
If you’re about to get hitched soon and like Mehra, don’t want to bemoan the hassles if things don’t work out, Shroff-Garg suggests opting for a Memorandum of Understanding (MoU). Similar to a prenup, an MoU that lists settlement terms can be signed by a couple before they get married. Though the MoU is still not executable in a court of law, it helps. “In the event of the marriage turning sour, it can be used as a good indicator to convey the intent of the two parties, so the courts can use that as a benchmark for their decision in the event of dissolution of marriage,” says Shroff-Garg.

Given their nature, prenups or MoUs are popular amongst affluent and well-known families where large amounts of money and/or public image is at stake. “In the woman’s case, it is usually the father who fears that his daughter might lose her wealth if a divorce were to take place. For men, it is done to secure their wealth, so that their wives do not make unfair demands on their assets,” says Shroff-Garg.

Celebrity lawyer Mrunalini Deshmukh feels prenups are the need of the hour with matrimonial litigations having shot up. “I strongly recommend making prenuptial agreements tenable contracts under the Indian law as they will greatly cut down on long-drawn litigations apart from the cost and time,” says Deshmukh.

What blasphemy!
In a country that’s rooted in its culture and prides itself on saat janam ka saath, the idea of a contract like this is blasphemous for many. Shruti Amin, a public relations executive, who is set to tie the knot soon is vehemently against the idea of one. “How can I think of a divorce even before I’m married? Call me old school but I have immense faith and belief in the concept of marriage,” she says.

But having faced a lot of trouble because of the lack of an agreement, Mehra says people must be practical. “We live in times where it’s important to be practical and realistic. Being embroiled in bitter settlement fights is just not what I signed up for,” she says.   
 
“While prenups go against the spirit of a marriage, we have to open our eyes to see that divorces are becoming fairly common in urban India,” says Sadia Raval, marriage counsellor at Inner Space Counselling, Mumbai. She adds that such agreements should be undertaken objectively, keeping emotions aside. “There’s a lot of stress involved in divorce with issues like property, child custody and in general, prolonged motion dates. Prenups aren’t a bad idea if they help ease the procedure,” she says.   

But Raval is skeptical about the mass acceptance of the concept of prenups or pre-wedding MoUs. “Here, there are so many disagreements at the wedding stage itself like food, expenses and number of guests. Prenups will only add to the tension.”

Acceptance or not, Shroff-Garg has the last word when she says, “Prenups surely take the romance out of the equation and make it seem that your marriage is doomed to fail. But millions of people the world over seem to think it is a sensible decision.”

*name changed on request