Just Because Prenups Are Western Doesn’t Mean They’re Good for Women


Apr 9, 2018


Last week, for a flash, the Western notion of a prenuptial agreement captivated Indian media. The Ministry of Women and Child Development convened a high-level meeting to discuss the feasibility of creating a legal framework for prenuptial agreements, an idea that was supposed to make Indian women more empowered as they enter into marriages. As some commentators noted, much of the discussion hinged on how Western societies had integrated the concept of prenups into their marriage laws. Ultimately, the meeting ended with no clear determination other than that more research into Western prenups was warranted. Which is just as well, argued Favia Agnes, who attended, because India’s marriage laws cannot be so easily compared to Western frameworks.

No doubt, India’s family law and court system need to be changed to better support the rights of the economically disadvantaged party (usually the woman). Agnes notes:

“It is obvious that courts dealing with women’s rights have failed to protect women. Issues of property division, child custody and maintenance have become highly contested. While this works out to be a boon for matrimonial lawyers, it is a bane for litigants, more so, for women, who lack the staying power to engage in long-drawn litigation. The courts have tried to deal with this by referring the couple to mediation, where they can mutually arrive at an agreement. But subtle pressure is exerted during these proceedings upon the wife to settle on the husband’s terms. The wife who refuses is seen as stubborn and overdemanding. Many mediators, including judges, function from the patriarchal premise that family assets belong exclusively to the husband.”

But there are a few other reasons prenups aren’t the fantastic, woman-liberating documents that the recent fervor might lead us believe.

The first set of problems stems from the very complex system of Indian marriage laws under which marriage is governed by religious norms. Because there’s no singular civil code that governs marriage in India, each religion’s marital code has its own set of rules, leading to diversity in the way marriages dissolve, assets and property are divided, custody rights are granted, and other administrative issues are handled. No contract template can possibly adequately maneuver the complexity of this legal web.

But even assuming there was a uniform set of rules governing Indian marriage, the social realities of gender and marriage in India preclude the execution of a fair prenuptial agreement in most instances. In an ideal scenario, a prenuptial agreement functions fairly because both sides come to the table to negotiate a set of terms. If one party is disadvantaged in that negotiation, the presumption of fairness, and the idea that this document might serve to protect the interests of the disadvantaged party, disappears. In reality, most brides in India are either less educated, less wealthy, or significantly younger than their spouses-to-be, which means their bargaining position entering into a contractual arrangement is weaker and the fairness of that contract, virtually untenable.

Interestingly, Goan marital law, which has its roots in Christian norms, does provide for prenups. However, because Goan marital law also makes it a community property jurisdiction — meaning that any earnings accrued during the marriage are divided equally at the time of divorce and that a husband can’t dispose of assets without his wife’s consent — Agnes argues that Goan brides would actually be disadvantaged by entering into a prenup. Why sign a document at the start of a marriage when there’s a legal framework that protects your economic interests upon its dissolution?

In the US, which has arguably popularized the idea of the prenup through pop culture, prenups are, in practice, only useful in a very limited set of circumstances. First, as already noted by Agnes, prenups only work to preserve equity between spouses when there was some form of equity in negotiating power prior to the marriage. In any scenario where one party has access to more education, more legal advice, or can exert more social pressure, that party can necessarily craft the agreement to suit (usually) his purposes.

Furthermore, prenuptial agreements only work well for marriages that end amicably. When marriages do not, the first strategic maneuver is to argue the contract is null and void. This can be done in a number of ways. One of the most common arguments for a party seeking to nullify a prenuptial contract is the claim that (usually) she signed it under duress. There are a number of ways under contract law to argue that an agreement didn’t constitute an enforceable contract; the point being, of course, that in the midst of a messy and acrimonious divorce, everyone is going to be looking to invalidate the prenup. And many times, they’ll succeed.

However, this point brings up another major issue with using prenups: Prenups presume not only an efficient legal system to enforce their terms, but also that women will have the basic resources to afford legal representation during this process. For prenups to support and protect the women they’re meant to protect, there needs to be a framework to ensure their terms can be enforced. Even assuming the terms of the contract are fair, it’s worth little more than the paper it’s printed on if women can’t access the legal system that enforces it. All of this makes prenups particularly problematic in a society in which men predominantly with access to lawyers and bankers, and women may not even have the opportunity to invalidate contracts that aren’t enforceable under the law.

India’s marital laws are too complex, too diverse, and currently too predicated on patriarchal norms to be reformed with the introduction of a Western concept like prenuptial agreements. Even in the US, where marital law is arguably simpler, the prenup provides only an illusion of simplicity when it comes to the dissolution of a marriage. It would behoove Indian legislators instead to focus on correcting the social imbalances that lead to coercion and manipulation in the distribution of marital assets. If they manage to do that, the West might end up taking lessons from them.


Written By The Swaddle Team


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