Today we have a panel of lawyers including Payal Chawla, the founder of Just Contract Us, Manali Singhal, a lawyer in the Supreme Court and Alkanshree Dahar, managing partner at the law offices of India.
Excerpts:
Q: What is the status in India about the prenups being legally valid?
A: According to Alkanshree Dahar, prenups in India are not valid as of now but I do see and I’m definite about it in the new future it will happen but as of now they’re not. I have worked for a lot of clients who in spite of knowing that they are not enforceable, are willing to get into kind of an agreement prenup that is before the marriage to decide that what happens in case something happens to the marriage. It’s like buying a new car, you don’t take the car out of the showroom thinking I’m going to have an accident but you do take an insurance policy on it.
Q: Manali they’re not legally binding but still people are opting for it, so can they be will they hold in the court?
A: There have been instances where people have produced prenups in court and the court has of course said that prenups are not recognized by Indian courts but there have been cases where they’ve been used as evident to have evidentiary value to the intent of what the parties had in mind so very often they say that okay before marriage is what they wanted.
Q: Payal, Manali mentioned the woman being left high and dry so does the woman always be the benefactor or sometimes the pups can work for men?
A: I think I’m in favour of prenups and somebody who drafts a lot of commercial contracts you have something called representation in warranties so parties have to represent their financial status and when people are getting married, there’s always this thing to puff your financial status but when you’re coming to a divorce everyone’s pleading poverty. So, if you have a contract, I believe that this prenups can lead to conversations
Q: Which is the main party that ask for a prenup, is the party that is economically better off that wants?
A: I have advised under UK jurisdiction on prenups where it’s enforceable and that to it just became enforceable with white and very recently your both concerns are absolutely on dot but you see a prenup has to be person can be pressurized so there are certain inherent safeguards we put in the prenorms.
Q: Why shouldn’t prenups be legally valid in India the pros and cons court will of course look into whether a prenup is fair or not?
A: The whole point is going to go to court and in court it’s going to take forever even now we have so many laws which are ostensively there for women to get maintenance but years and years go on I don’t know how much we’re going to achieve because we don’t have a system where for like in UK that all marital assets are created during marriage would be divided. 50/50 that kind of a concept is not there at all and in India.
Q: How would having a prenup make it more complicated?
A: You can’t have a standard format for a prenup or you can’t make it in compulsory keep to be case toase and obviously we have to be very careful that in a country like India where women are slightly still disadvantaged they don’t have and even from their own family background there will be always a pressure to sign something, get married.
Q: If this prenup has to be then scrutinized by the courts to make it valid then why go through it if it’s not a binding?
A: Because then for the simple reason because it clarifies the position of the parties which the court in the other cases and in other instances will take years and years for them to agree on.
Q: Probably things have already start so changing the prenup has to be done it’s not necessarily?
A: I know a lot of people who get divorced without wanting to kill each other. Now because things have moved on and we have to move on with the changing times, law has to change it’s all the time evolving, have to change.
Q: We have great acts even the maintenance application there’s time stipulated for it within this much time the maintenance has to be given, does it ever happen?
A: Reality in the burden on the system that’s why what is supposed to be only a discussion of assets children get dragged in because if you don’t pay me I won’t allow you to see the kid that is something the wife will hold over so the children get dragged in.
So I think the panel is more or less in favour of a prenup is just the technicalities and a lot of caution. In our Indian context definitely a lot of caution must be exercised and we must be careful that these are not used actually to overcome the rights which are available today in the court in law legally to women, those rights should not be taken away by prenup.