Prenuptial Agreements to be the Norm? - Business Standard

Prenuptial agreements in India might not be legally tenable but, increasingly, families are going for these contracts which state the assets of the bride and groom, and the compensation the woman will receive if the marriage turns sour and the couple legally part ways.

“Families are opting for prenuptial agreements to see the intentions of the parties involved, even though the contract is not legally binding,” says senior advocate Mrunalini Deshmukh, who handled divorce cases of many Bollywood celebrities including Aamir and Reena Khan and Karisma Kapoor. She adds that the document is used to tell the court the conditions that the couple had agreed upon when they got married.

It’s not only the wealthy that are drawing up these agreements. Advocate Vandana Shah recently got a couple who asked her to help them draft one such contract. They were both part of corporate world, working in middle management. When she told them it would not have any standing in a court, they said they were making it so that both were clear on the settlement terms if they part ways.

Prenuptials are popular in developed countries such as the US, Australia, France and Germany. But in India, there are Supreme Court rulings which say any contract which has marriage as an object is null and void.

Recently, Maneka Gandhi, minister for women and child development,  recommended to D V Sadananda Gowda, Minister for Law and Justice, to make Prenuptial Agreements mandatory before marriage.

The recommendation was made as many women from lower socio-economic backgrounds have to fight endless battles over alimony, marital ownership of property and assets during divorce.
Deshmukh says, on an average, divorce cases take four to five years to conclude; but many also drag on for over 15 years. She has a client, who is still fighting a legal battle since 1999.

The idea of legalising Prenuptial Agreements has many takers.

Lawyers say it will help reduce the burden of courts. It will also end husbands and wives taking undue advantage of each other and will keep their expectations in check. It will also help solve common reasons for fights or disputes, such as division of property.

Financial planners say it will be a good starting point in a marriage. When drawing a prenuptial agreement, the entire assets, liabilities, business ownerships, among other things, are listed out. This can make both parties aware of each other’s finances before tying the knot.

Even if a prenuptial agreement does not become legal in India, there are a few things every couple should follow while managing their family finances to ensure that things don’t go awry in case they part ways.

Suresh Sadagopan, a certified financial planner, says couples should keep their finances separate and contribute towards expenses in equal proportion. If the husband’s salary is Rs 1 lakh and wife’s is Rs 50,000. They can equally contribute 30 per cent of their income to family expenses.

Shah says couples should keep their bank accounts separate and all investments should be done through individual accounts. This will not only create a trail, but also make calculation of taxes easy.

When buying property, couples should also take the ownership in the asset in proportion to their contribution, Sadagopan says. If the husband is paying 70 per cent of the equated monthly instalment, he should list his share in that proportion.

Source - http://wap.business-standard.com/article/bs/prenuptial-agreements-likely-to-be-mandatory-116020400476_1.html

Degree of Prohibited relationship as per the Hindu Marriage Act, 1955

This clause prevents marriages between prohibited degree of relationships and sapindas. This provision has a scientific base because the prevention of a marriage between persons of prohibited degree of relationship or sapindas, will actually prevent the birth of physically deformed children or deaf, dumb and blind children, because the possibility of delivering such children is more in marriages between persons of prohibited relationship and sapindas.

Section 3 (f):

i. "Sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;

ii. two persons are said to "sapindas" of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

Section 3 (g):

"degrees of prohibited relationship" – two persons are said to be within the "degrees of prohibited relationship" –

if one is a lineal ascendant of the other; or 
if one was the wife or husband of a lineal ascendant or descendant of the other; or 
if one was the wife of the brother or the father’s or mother’s brother or of the grandfather’s or grandmother’s brother; or 
if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters; 
Explanation – For the purposes of clauses 3(f) and 3(g), relationship includes –

relationship by half or uterine blood as well as by full blood; 
illegitimate blood relationship as well as legitimate; 
relationship by adoption as well as by blood; 
and all terms of relationship in those clauses shall be construed accordingly.

Degrees of Prohibited relationship as per the Special Marriage Act, 1954

Section 2 (b):

"Degrees of prohibited relationship" – a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship.

Explanation (I) – Relationship includes, --

relationship by half or uterine blood as well as by full blood; 
illegitimate blood relationship as well as legitimate; 
relationship by adoption as well as by blood; 
and all terms of relationship in this Act shall be construed accordingly.

Explanation (II) – "Full blood" and "half blood" – two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Explanation (III) – "Uterine blood" – two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

Explanation (IV) – In Explanations II and III, "ancestor" includes the father and "ancestress" the mother;

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THE FIRST SCHEDULE [ DEGREE OF PROHIBITED RELATIONSHIP]

PART – I

Mother. 
Father’s widow (step mother). 
Mother’s mother. 
Mother’s father’s widow (step grand-mother). 
Mother’s mother’s mother. 
Mother’s mother’s father’s widow (step great grand-mother).

Mother's father’s mother. 
Mother’s father’s father’s widow (step great grand-mother). 
Father’s mother. 
Father’s father’s widow (step grand-mother). 
Father’s mother’s mother. 
Father’s mother’s father’s widow (step great grand-mother). 
Father’s father’s mother. 
Father’s father’s father’s widow (step great grand-mother). 
Daughter. 
Son’s widow. 
Daughter’s daughter. 
Daughter’s son’s widow. 
Son’s daughter. 
Son’s son’s widow.
Daughter’s daughter’s daughter. 
Daughter’s daughter’s son’s widow. 
Daughter’s son’s daughter. 
Daughter’s son’s son’s widow. 
Son’s daughter’s daughter. 
Son’s daughter’s son’s widow. 
Son’s son’s daughter. 
Son’s son’s son’s widow. 
Sister. 
Sister’s daughter. 
Brother’s daughter. 
Mother’s sister. 
Father’s sister. 
Father’s brother’s daughter. 
Father’s sister’s daughter. 
Mother’s sister’s daughter. 
Mother’s brother’s daughter.

Explanation – For the purposes of this Part, the expression "widow" includes a divorced wife.

PART – II 

Father. 
Mother’s husband (step-father). 
Father’s father. 
Father’s mother’s husband (step grand-father). 
Father’s father’s father. 
Father’s father’s mother’s husband (step great grand-father). 
Father’s mother’s father. 
Father’s mother’s mother’s husband (step great grand-father). 
Mother’s father. 
Mother’s mother’s husband (step grand-father). 
Mother’s father’s father. 
Mother’s father’s mother’s husband (step great grand-father).

Mother’s mother’s father. 
Mother’s mother’s mother’s husband (step great grand-father). 
Son. 
Daughter’s husband.
Son’s son.
Son’s daughter’s husband. 
Daughter’s son. 
Daughter’s daughter’s husband. 
Son’s son’s son. 
Son’s son’s daughter’s husband. 
Son’s daughter’s son. 
Son’s daughter’s daughter’s husband. 
Daughter’s son’s son. 
Daughter’s son’s daughter’s husband. 
Daughter’s daughter’s son. 
Daughter’s daughter’s daughter’s husband. 
Brother. 
Brother’s son. 
Sister’s son. 
Mother’s brother. 
Father’s brother. 
Father’s brother’s son. 
Father’s sister’s son. 
Mother’s sister’s son. 
Mother’s brother’s son. 

Explanation – For the purposes of this Part, the expression "husband" includes a divorced husband. 

Legal consequences are that the marriage is void.

Void marriage

Section 11 of the Act provides the circumstances under which a marriage shall be declared null and void, on a petition presented by either party on the grounds that the marriage contravened the conditions specified for a valid marriage in section 5 which are;

Neither party must have a living spouse at the time of marriage 

The parties are not within the degrees of prohibited relationship unless the custom or usage of either party permits marriage between such parties within a prohibited relationship. 

The parties are not sapindas of each other unless the custom or usage of the parties permits marriage between them. 

A marriage which is solemnized after the commencement of this Act in contravention of any of the conditions mentioned above is null and void ab initio from its inception and either party can obtain a decree of nullity from the Court. Any marriage that is null and void shall be so declared, and dissolved by the court on a petition presented by either party.

Legitimacy of children born out of a void marriage

Section 16 of the Act grants legitimacy to the children who are born out of a void marriage and declares them to be legitimate regardless of a decree of nullity being passed by the Court.