ALTAR TO ALTERCATION

A peek into the complexity of prenuptial agreements in India, and why Goa is the only outlier

- BHAVINI MISHRA

A startup founder in Delhi, while he was preparing for his wedding, consulted a lawyer about the management of his assets. What he wanted was a prenuptial agreement, what he ended up getting was a memorandum of understanding (MoU).

For, in India, where many believe marriages are made in heaven, man-made prenups have limited value.

"A lot of high net worth individuals, even women, have been coming to us for an MoU before getting married," says Sarah Kapadia, Partner at law firm Vesta Legal. "I want to reiterate that prenups are not legally enforceable."

So, what is the MoU for? "These clients want an MoU to create an understanding on everything such as what happens after a certain number of years of marriage, what happens to the children, who gets custody, what kind of education the children will receive," says Kapadia.

In October last year, a family court in Mumbai granted divorce to a couple while holding that their prenuptial agreement was unenforceable. The court, however, said the agreement will still have a persuasive value, meaning the court will take it into consideration but not be guided by it. The court considered the agreement to understand the intent of the parties before marriage and their anticipation of potential issues and mutual willingness to separate, should problems arise.

"In India, the law concerning prenuptial agreements is still controversial and not fully evolved. There is no law permitting such agreements and there is no law prohibiting them, that is, there is a complete legislative void," says Shivani Lohiya, an advocate.

In the absence of legislation, the law on this subject is mostly from judicial pronouncements and governed by the Indian Contract Act, 1872.

"Even in cases where the requirements under the Indian Contract Act, 1972 are met, prenuptial agreements are not binding but viewed as a document indicative of the intent of the Parties," Lohiya says.