This article has been written by Anubhav Garg, pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. This article discusses whether it is beneficial for NRIs to enter into a prenuptial or postnuptial agreements weighing the advantages and drawbacks of it and addressing the problems faced by them.
What are Prenuptial Agreements?
A prenuptial agreement also referred as Antenuptial Agreement or Premarital Agreement, generally abbreviated as Prenup, is a contract entered into prior to marriage, civil union or any agreement prior to the agreement which by the people intending to marry or entering into a different contract with each other.
What is Postnuptial Agreement?
A postnuptial agreement, which is sometimes also known as a Post Marital Agreement, popularly known as postnup is a legal instrument designed for couples who have already been married or in a civil union. Similar to a prenuptial agreement, a postnuptial agreement establishes how the couple’s assets will be divided in the event of a divorce or legal separation or death and the amount (if any) of spousal support that one spouse will pay to the other if the marriage ends.
The mainline of difference between Prenuptial Agreement and Postnuptial Agreement is that prenups are signed before the main agreement and postnups are signed after the main agreement.
What purpose do Prenuptial Agreements and Postnuptial Agreements Serve?
The purpose and content of Prenuptial and Postnuptial Agreements may differ from situation to situation, but it commonly includes provisions for: –
- Division of property and spousal support in the event of breakup of marriage or divorce.
- Terms and conditions for the forfeiture of assets as a result of divorce on the grounds of adultery.
- Conditions of guardianship after the divorce, death, and separation of husband and wife.
What is the law Governing Prenuptial Agreements?
There are various opinions and preconceptions in India about the legal sanctity of the Prenuptial Agreement. There are no second thoughts like that, in case of Postnuptial Agreements because they are not viewed as a symbol of lack of trust and commitments in a between the future couples. All of these opinions/ perceptions/ views which we usually come across (as well listed in this article from The Better India), can be divided into two segments as follows: –
- Prenuptial agreements are governed by the law of contracts and not matrimonial laws. They require all the requisite essentials as for any other contract as mentioned in the Indian Contract Act, 1872 under S.10.
- Prenups can be considered binding if the marriage is solemnised under the Special Marriage Act, 1954 provided it is submitted along with other documents to the registrar.
The views of courts are also divided when it comes to the validity and enforceability of prenups. In some judgments like in Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu courts have taken into consideration prenups for the division of assets. But in some judgments like Tekait Mon Mohini Jemadai v. Basanta and Kumar Singh and Krishna Aiyar v. Balammal, they have considered prenups as non-executable and invalid.
But in all the cases there was one thing common, courts have considered the prenups as an important factor in ascertaining the intentions of the parties and on the understanding on the basis of which the marriage has been solemnized. In all the courts, Prenups have played an important role in divisions of assets irrespective of the fact that there is no specific law pertaining to their enforceability and validity.
What are the problems faced by NRIs or people getting married to NRI and how pre/postnups helps in solving them?
India still has a significant number of people who have an arranged marriage and in some cases, the decisions are taken within a very short span of the potential bride and groom meet each other. In such cases, there may not be enough time where the bride and groom can know more about each other in terms of their background. Geographical divides worsen the possibility of the background being known and therefore Non-Resident Indians can face some unique issues as under:
Marrying just for the purpose of citizenship
Indian citizens who are getting married to Non-Resident Indians (NRI), sometimes already have relationships in India and they get married to a Non-Resident Indians just so that they can get citizenship of that foreign country where NRI resides. Then they divorce that Non-Resident Indians and get married to their paramour in India to make him or her a citizen of that country.
Abuse against NRI women
Several cases have been reported to Indian Embassies where NRI women have been harassed by their husbands after marriage and after that, they flee back to India. One of such cases we come across in a here, An Indian citizen got married to an NRI woman and used to harass her a lot in the US even though he lived with her parents in there. He stabbed the girl in anger one day and ran away to India and filed a case of immigration fraud against his own father-in-law.
Problems faced by Indian citizens after marrying NRIs
- Indian women who were married to an NRI who abandons them even before being taken by her husband to the foreign land to his residence. Several cases have come forward showing many women have reached the foreign country of their husband’s residence. They keep waiting and texting their husband from the international airport just to face the disappointment of being abandoned by an NRI.
- Women have been brutally beaten, assaulted, abused both physically and mentally, starved and malnourished, confined and roughly treated and forced to flee or was forcibly sent back.
- A small engagement which is followed by a lavish wedding and after huge dowry and a honeymoon, the NRI husband flies away to a foreign land while the wife was left out waiting for her visa.
- The menace of ‘honeymoon brides’ is a big problem to deal with. As per a report, two-thousand women who had married an NRI guy haven’t seen their husbands after the honeymoon.
- Many times it has been found that NRI husbands were already married outside India to another woman. Many wives had committed suicide after discovering this also a number of times NRI husband had given false information on any or all of the following: his job, immigration status, earning, property, marital status, and other material particulars, to con women into the marriage in the greed of dowry, honeymoon, citizenship, etc.
- Women who have ever knocked on the doors of the court, either in India or in the foreign country’s courts, for maintenance or divorce have repeatedly encountered technical obstacles related to jurisdiction of courts, service of notices or orders, or enforcement of orders or learnt of the husband facing simultaneous similar legal proceeding in the other countries as well.
- Many times NRI already settled abroad commit immigration fraud by falsely marrying in India. Later, they break deals if more money is not paid to them.
- There are cases where NRI commit crimes like murder, cheating, fraud and run away from India to their foreign country to avoid legal consequences.
Benefits and safeguards for NRI couples
When a couple enters into a prenuptial or postnuptial agreement, it does not per se mean that they are considering filing for the divorce. Here is a list of some common reasons for and benefits to both the NRIs and their future/existing spouses by entering into a postnuptial agreement: –
1. To express their wishes pertaining to property
Sometimes, couples enter into prenuptial or postnuptial agreements in order to clearly lay down each party’s wishes pertaining to the property they brought into their marriage. This helps in ascertaining which assets will be shared and which will be given to either of them because most prenups have a condition that assets made after marriage shall be shared and the assets individuals hold before marriage shall remain with that individual alone.
This will defeat the objective of those NRI who marry Indian women only for the sake of property and it will also protect the interest of those NRIs who get targeted and married just for making a claim on their property. It will reduce the common wrong of “marrying for property” against NRI.
2. Having children from a previous marriage
When spouses have children from previous relationships or marriages, they may want to make sure that a certain share of the property would pass to those children no matter what the situation is. These agreements also help in protecting children’s inheritances from if a woman/man is already married in other countries and has children, this gets disclosed to other party in a prenup. And if they don’t make any such disclosure in the agreement, it becomes easy to prove their lie in court. It also makes sure that the property gets divided among the children of both sides fair and square. It also protects the financial stability of your children. Without a prenuptial agreement, your spouse may receive assets you intended your children to have.
3. Financially Irresponsible Spouse
A postnuptial or prenuptial agreement is a good option when you are aware that your mate or spouse is financially irresponsible or has gone through or are still going through some legal trouble during the marriage. For example, if one spouse’s spending habits, addictions or gambling habits are creating financial stress on the other one, it might make the other spouse to consider one of these agreements as a way out.
It protects the NRI wives against the financially irresponsible husbands or husbands who cheat in future because by way of these agreements, wife can enforce her rights over the property and claim her fair share for maintenance and childcare and she can even stop husband from irresponsible behavior by claiming the property and making him resourceless to finance those futile activities.
4. Separation of Property
These agreements clearly mention on paper each spouse’s separate property to protect it as separate property so that if one spouse gets stuck in some legal matters and situations get so worse that court seizes his property, the other spouse’s property is safe.
Signing a prenuptial agreement eliminates the possibility of future conflict in the case of divorce, as it states how issues are to be handled. It can also help to reduce the amount of time that it takes to settle up the divorce.
5. Special Arrangement
These agreements document and lay down in detail any special arrangements between husband and wife so that there is no dispute of turning back on the conditions agreed upon between couples.
This will not let the non-NRI counterpart get away with breaking the predetermined conditions of division of assets and custody of children.
6. Circumvent extended court proceedings
These agreements lets you avoid lengthy court proceedings which result in saving the time of expensive divorce lawyers who charge for every hour and also cut down the costs during a divorce. This agreement also lets you assist your estate plan and help in circumventing court interference to decide the properties’ distribution which can really affect the reputation of NRI’s in their companies and if not dealt properly can cost them their job.
7. Assignment of Debts
Prenuptial and Postnuptial Agreement assigns all kinds of debt, such as Home Loans, Car Loan, Education loans, and mortgages, to the appropriate spouse to avoid both spouses sharing debt liability.
8. Custody of Children
These agreements also make it clear by explicitly stating which parent is going to get custody of children after the divorce thus settling all kinds of dispute, fights and obnoxious court proceedings over child’s custody while you are already having a hard time with your relationship. The couple can go for sole custody joint custody. Under joint custody, both parents have legal custody of the child, but only one of them has physical custody of the child. However, in sole custody, only one of them has both the physical and legal custody of the child.
If any of the spouse has left his career/job in order to stay at home and take care for minor children, a postnuptial agreement can assist to make sure he or she will have the financial resources they need in the event the marriage ends in divorce.
This clause in the Prenuptial Agreement can be used by NRIs in their favour after considering the factors like career, time, resources, etc. AN NRI who is very obsessed with his job and career can deny the custody of children in the agreement but if he wants the children to be with him, he can mention the same in the agreement.
When Prenuptial/Postnuptial Agreements should be avoided?
As with any type of legal agreement, you should only enter into a prenuptial/postnuptial agreement after carefully considering all of the agreement’s provisions and implications. Here are some of the reasons to think twice about creating and signing a postnuptial agreement.
When there is a significant earnings differences between the parties
If there is a significant income disparity in a marriage, the lower-earning spouse may find that a postnuptial agreement’s provisions would not adequately provide for them in the event of a divorce or separation. That does not mean that couples with chasm of difference in income levels should never sign a postnuptial agreement; however, they should carefully evaluate such an agreement before signing it.
If any of the party has not been given sufficient time to read or evaluate the terms of the agreement
Prenuptial/Postnuptial agreements are legally enforceable contracts (if they have all the essentials of a valid contract), so it is important that both parties have the chance to read and fully understand and comprehend how this agreement is going to protect and limit their rights and obligations. If you did not understand what you were signing this is not likely to stop enforcement of the agreement, so take the time to study the document and ask for clarification where it is needed.
There can be many instances where a relationship can be sabotaged because of the lack of transparency in financial dealing amongst husband and wife. These agreements provide that much-needed clarity among the couples. Therefore, having this agreement ensures that the rights of both parties are taken care of. Prenups can come really handy to check misuse and abuse of Section- 498A of the Indian Penal Code, 1860 which is a common problem faced by many innocent NRI men nowadays.
There is no law in India which determines the amount of alimony to be paid by a fixed formula or in a fixed proportion in an arithmetic manner. Alimony is usually something which is left out at the discretion of the courts. The court, while deciding the maintenance, may consider factors like the income of the spouses, the standard of living, the conduct of applicants, etc. By having a prenup/postnup, you can decide this amount beforehand and strive for an equal distribution which will be favorable to both parties and not only in favor of one who is not an NRI. It will ensure that NRIs are not treated unfairly and do not face a stereotype of “being rich because he is an NRI” It also ensures that the parties are relieved from carrying the burden of each other’s financial obligation post-breakdown. So all over it is beneficial for NRIs to enter into a prenup/postnup.
(problems faced by NRI)
(Problems faced by NRI women)
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