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Friday, October 20, 2017

Pre-nuptials

by Seema Upadhyay (writer), Mumbai, May 26, 2009

Marriage Vows or Woes????

Nisha, a young 37 years old lawyer by profession and mother of a 6 years old son was left penniless few months back; when she separated from her husband. The reason she didn’t have a pre-nuptial agreement before her marriage and she continued her work post marriage and used all her earnings to take care of the household expenses. She was shocked to know before separation that her husband Raj had a savings of Rs.20 lacs and refused to give her a single penny saying that it was his hard earned money and she should have saved and invested her salary smartly.

Nisha is not the only one. Sneha; an advertising executive and a single mother spends her entire salary in clearing the debts taken by her ex-husband. The debts were taken in her name since he was not eligible and after separation her husband refused to contribute his share. Sneha has to support her parents, a 10 yrs old daughter and also pay the debts which weren’t taken by her but her husband.

Both these women are educated, smart and earning and yet were taken for a ride by their respective spouses because they didn’t have a pre-nuptial agreement and they trusted their spouse blindly.

As Nisha says that her husband’s attitude towards money was “Your money is our money; but My money is mine” it’s not for her or their 6 yrs old son.

Pre-nuptial agreement does not exist in India. It should be mandatory though many celebrities and socialites do have a pre-nuptial agreement; which safeguards their earnings and properties incase of separation or a divorce. To understand more about this I decided to speak to legal partner, Universal law firm- Mr. Apurva Agarwal.

S: What is a pre-nuptial agreement?

A: A pre nuptial agreement is executed between a prospective husband and wife before the marriage. This agreement primarily contemplates the rights and liabilities of the married couple, incase they go in for a divorce. The agreement provides for the division of assets, the well being of the children out of the wedlock and other issues concerning the couple.

S: Do we have the same according to the Indian Penal Code in India?

A: Indian Laws including the IPC does not recognize pre – nuptial agreement. Under the Indian laws, more specifically the Hindu Marriage Act, marriage is considered as a “Holy Union”, unlike in the Western Countries where marriage is treated as a Contract.  Hence, pre nuptial agreements are recognized in the Western countries and not in India.

S: How does it help a person in advent of separation or while filing a divorce?

A: Since, all the division of assets, well being of the children etc are decided in the pre nuptial agreement, it makes life simpler at the time of filing for divorce.

S:How does one get a pre-nuptial agreement done? Does one approach a lawyer or it can be done on a stamp paper with 2 witnesses?

A: It’s an agreement between the prospective couples. Since, it is not recognized in India and unenforceable, these agreements are not executed. Though there are many cases of Bollywood celebrities and socialites going to western countries and getting a pre-nuptial agreement done there before their marriage and then come to India and take their vows according to the Indian rituals.

S: What is the cost involved?

A: Since, it is not recognized in India and unenforceable, these agreements are not executed. But in western countries; one needs to pay the lawyer’s fees which differs for each lawyer.

A: What happens after the demise of the spouse; can his/her parents stake a claim?

S: Incase of death, then succession laws applies and not divorce laws.

Well since Pre-nuptial agreement is not legal in India; how can the women safeguard their interest? The answer is simple if you are a working woman; please maintain a separate savings account along with a joint account with your spouse. Start saving if you have not already done. Ensure that both you and your spouse save for your children’s education and future.

Many women make the mistake of returning the jewelry to their spouse after the separation or the divorce and in all the cases the spouse and his family readily accept the jewelry back. Nisha and Sneha did the same since they were hurt in the relationship but Sharon, a banker by profession who recently separated said that, “I sold the jewelry and spend the money on a much deserved holiday; makeover and the exotic spa treatment. The thrill of spending this money was amazing”.

It is always recommended to keep the jewelry even if you don’t want to use it; you can always give it to your children or sell them and save the money. In most of these cases the women trusted their spouse and all these are highly educated working women. Don’t be gullible and be taken for a ride. Think smart and save for the raining day.



About the Writer

Seema Upadhyay is a writer for BrooWaha. For more information, visit the writer's website.
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