Do pre-nuptial agreements necessarily benefit the weaker partner in a marriage? Are they a device to make women’s rights within and after marriage more secure? How are such agreements superior to the legal redresses which are currently available to women in case of a marital breakdown? Most importantly, are such options really mandated by conditions which shape the marital landscape of most Indian couples?
These are some of the questions which we must ask in response to the Union Minister Maneka Gandhi’s recent proposal to give legal validity to pre-nuptial agreements. More so, because the Minister has reportedly pegged this proposal on the claim that it will further the interests of women in both marital and non-marital relations.
Popular in many Western countries as well as found in some customary marriages such as nikah, a pre-nuptial agreement in its modern form involves a voluntary contract between two parties delineating, among other things, the distribution of property and assets in the event of marital breakdown. The agreements are primarily a device for reducing the possible high cost which may be incurred in the event of marital dissolution.
In keeping with such a use, pre nuptial agreements have largely been favoured by highly propertied individuals (men and women) who stand to lose a great deal of their existing assets in the event of a breakup. Celebrities and millionaires use them to guard against what are treated as ‘gold diggers’, i.e., those seen as entering a marriage in order to primarily economically benefit from it, one way or the other.
If the predominant use of pre-nuptial agreements is to save affluent people from losing their wealth to a fickle partner, its possible use for advancing the cause of those women who get a raw deal in the event of divorce is far from obvious. Or is saving the wealth of the propertied from marriages gone awry the real purpose of such a move?
Moreover a pre nuptial agreement also presupposes a high degree of individualism in matters of marriage and is seen as part of a trend where marriage is becoming a more privatized affair in which the concerned partners like to enforce their specific expectations through a legally binding agreement. The scenario that prevails in Indian marriages on the other hand is such that the family and even extended kin groups play a major role in not only the choice of marriage partners but also in its solemnization if not the relationship between the spouses. It might even be appropriate to say that family also plays a major role in the event of marital breakdown.
Can we really envisage the possibility of a voluntary freely entered into prenuptial agreement between spouses in such conditions? How can such possibilities be realized in conditions where every other aspect of marriage is not necessarily in the hands of those who are entering the marriage?
Moreover, it is not even clear that instituting this possibility will reduce the recourse to the legal machinery. Can one assume that when a marriage breaks down people will simply honour the agreement even if it may no longer seem like a good idea? Enforcement of the agreement may itself require recourse to the legal machinery and there may also be litigation on the validity of the agreement itself. Examples of such litigation are available even from the western societies where such agreements have had some amount of currency. Indeed the requirement of a pre nuptial agreement will institute the need of lawyers even before marriage and not just in case it ends. This is again hard to imagine in a situation where most marriages are not even registered.
Moreover, it is only in societies with an extremely high incidence of divorce that such an eventuality becomes a defining character of the institution itself and is likely to be consciously articulated and acted upon even before entering to marriage. The very idea of drawing plans around an eventual breakdown of marriage prior to the solemnization of a marriage would be very uncanny in a society where most marriages are expected to be for life. In this sense even people who enter marriages less constrained by caste and family pressures are unlikely to embrace such a possibility as this can easily be read as one’s lack of commitment to the relation in the first place. But even if it is treated otherwise, whose interests does it protect?
Radmacher v Granatino (2010) which is a landmark case involving a dispute over a prenuptial agreement in UK, has some important lessons for us. What is relevant here is the comment of Katrin Radmacher, in this case the heiress wife of Nicholas Granatino: ‘[The prenuptial agreement] was meant to be a way of proving you are marrying only for love. It was a natural part of the marriage process. In my case, my father insisted upon it to protect my inheritance’. What is the lesson in this for us? Obviously not what is proposed by the Union Minister Maneka Gandhi!