Usual mis- guidance expected from a @ Law Officer and fixation of gender misuse laws result in above mentioning which I heavily disagree.
Prenuptial: What are they and how to ensure they are enforceable in India ?
[Quite thinkable for emerging Indian cities living couples based]
Prenuptials are enforceable guidelines contrary to popular perceptions it is not only about financials but is much more.
It is well said that you might love blindly but get into marriage with your eye completely open (Guys I do not mean with popping eyes while looking at your to be)
Prenuptial agreement is more likely to stand up if it meets the following conditions:
· The Agreement should be fair, and duly acknowledged.
· The Agreement should have attorney certification from both parties as well.
· The Agreement should have clause stating that if any provision of the agreement is invalidated, the rest of the agreement still remains in effect.
· There should be listing attached showing each spouse's assets and liabilities.
· The Agreement should have all the clauses of agreements arrived at between the prospective spouses.
· The Agreement may also contain the necessary history of proposed alliance.
· The Agreement should be reviewed by separate lawyers and duly certified by them.
· 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.
However the prenuptial agreement may at least check some false prosecutions by unscrupulous Women, who are misusing S. 498A IPC or Bharat Ratna DV Act of IPC for blackmail and Extortion of money, as well as it will reduce the fraud or honeymoon Marriage by Men.
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 by Legal Terrorists.
Some of those people, who refuse to see dangers and consequences of false S. 498A IPC or Bharat Ratna DV 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. Horoscope matching
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 incase of calling of the marriage
10.Gift records (setting limits)
B. Operations Module
1. Lifestyle related
Illustration: How will the various items required for running marital life will be bought
1. Car (who buys or who rents)
2. House
3. Furniture etc.
4. Holidays
What percentage income will each put for common pool also called as marital pool and it may also include pocket money savings too if so desired.
How will the common pool be operated (either or both)
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.
Illustration: 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 (for eg:- in first Diwali the girls parent usually gift. Limits can be set on what can be received)
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 various Family Laws in India 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, laundry etc)
4. Child planning (when, how many, where)
5. Define exception conditions (Example if the couple cannot conceive then adoption or surrogate or IVF etc.)
6. Rules of staying away (Transfer say in Govt. Jobs or even in pvt. Jobs)
7. Rules of abortion (Either or both consent related)
8. Rules of meeting parental obligations (in-house, in complex situations 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. , marriage and medical needs. 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.
Not necessarily disclosure has to be made rather a declaration has to be made that the other party does not care about the other persons pre marital assets.
A marital pool has to be defined regardless of assets.
People think that prenuptials are just two to three pages. Nothing can be far from the truth. A good prenuptial is at a minimum of 40 to 50 pages.
Credits: Save Family Foundation