DOWER AS AN OLD TRADITION OF PRE-NUP:
In Mohammedan law the idea of pre-up was availed even before the popular western notion.
As most Muslim marriages involve the negotiation of a mahr provision as part of a marriage
contract which consists of a monetary payment from husband to wife, so the notion of
Mahr, under mohemmedan law, as defined by Tyabji, “Mahr or dower is a sum that becomes
payable by the husband to the wife on marriage, either by an agreement between the parties,
or by operation of law.” Further, in the case of Abdul Kadir v. Salima , Mahmood J., gave
the best description of nature of dower. It was observed by him:
“Dower under Muhammadan Law , is a sum of money or other property promised by the
husband to be paid or delivered to the wife in consideration of marriage and even where no
dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of
dower upon the wife as necessary effect of marriage. To use the language of Hedaya, the
payment of dower is edjoined by the law merely as token of respect for its object (woman),
wherefore the mention of it is not absolutely essential to the validity of marriage; and, for the
same reason, a marriage is also valid, although a man were to engage in the contract on the
special condition that there should be no dower.” In the case of Zawahiri v. Alwattar 18the U. S .Court held that under the Muslim Marriage
Contract prenuptial agreements were not enforceable. But further the Court also held that a
Muslim Marriage Contract could be enforceable as a simple contract also. In this case the
wife seeks for enforcement of the Muslim Marriage Act on the basis of the theory that the
Muslim Marriage Contract was basically an Islamic prenuptial agreement. But this contention
was rejected by the Court as it could not be established that there was no requisite which
could fulfill the condition of prenuptial agreement, as provided under the Ohio law, i.e the
requirement of advice of counsel for full and complete disclosures. Also, in case of Ahmed
v. Ahmed20 the issue arose as to whether the mahr agreement should be construed as a
premarital contract where the parties had been married in a civil ceremony six months prior
to signing the mahr agreement at the Islamic marriage ceremony. But in the case of Akileh v. Elchahal , considering the validity of mahr as a prenuptial
agreement, the Appellate Court provided that-“a marriage is sufficient consideration to
uphold an ante nuptial agreement” and therefore, the contract between the parties was valid
and enforceable. We see that consideration of dower or mahr as prenuptial agreement the view of Courts vary,
but the establishment of such agreement as part of marriage has been upheld in certain decisions. As it is known that marriage in Muhamadan law is of contractual nature, since
both parties have to agree to the marriage i.e. on utterance of word “kabool”, they show their
consensus. It can be clearly provided that marriage is falling under the ambit of contract law,
as nikhah is the act of marriage and mahr is its prenuptial agreement. In this regard we see
that under the old traditions the idea of mahr was prenuptial agreement developed.
MARRIAGE IN POST-MODERN SOCIETY:
What is marriage? As per sociologists, marriage is a social institution wherein it forms an
effective part of the social structure.A marriage leads to inter-relationship between, two
families and so ensures strong bonds within the society. “Marriage is also an interpersonal
relationship, the ultimate avowal of committed, unconditional, and mutual love.” It is commonly interpreted in social history, that there lies two main factors for the massive
transformation the institution of marriage has undergone in Western societies during the
modern era. This is due to the processes of individualization and pluralization on the one
hand, other arrangements have come in the place of an institution that traditionally used to
regulate sexual behaviour, legitimize children, and organize the division of labour between
men and women and the transmission of property and resources to dependents. “Assuming that this development reached its apex at the close of the 20th century, one may
wonder whether there is any significant role for marriage in postmodern times. Analysts still
differ about whether modernity’s dominant message about marriage has been one of
inevitable decline and eventually total collapse, or whether marriage has after all adapted
fairly well to the modernizing trends of the past three centuries. But even if it is true that
modern marriage has compensated for its loss of relevance by what it has gained in terms of fairness, gender equality, and partnership satisfaction, the troubling objection is that
alternative forms of life score equally high on these scales.” A sacramental marriage is considered to be antithesis of American individualism. A
sacramental marriage isn’t just a wedding meant to be celebrated, rather, the requirement of
an equal and loving partnership to be lived for the whole of life. “When believing spouses
covenant to one another in marriage, they commit themselves to explore together the
religious depth of their married life and to respond to that depth in the light of their mutual
covenant to Christ and to the church in which he abides.”Marriage does not isolate the
spouses from life; instead it immerses them in life, and confronts them with the ultimate
questions of life and death that are the stuff of religion. So, marriage has become more optional and more fragile since intimacy and romance became
the prime considerations and love developed into its one and only prerequisite. Not only do
spouses separate more easily, once the ideal of the perfect love match evaporates from their
unions, but now we also see that people increasingly opt for alternative forms of loving
relationships instead of entering into the institution of marriage. In the post-modern era with
the impact of individualization and pluralization, it has led to change in marriage from a
romantic relationship, to a contractual agreement like pre-nup.
DEVELOPMENT OF PRE-NUPS IN POST- MODERN ERA:
It is viewed that pre-nups has now become a common phenomena in west, especially in the
United States, Canada and some nations of Europe. In the U.S, the concept of pre-nup is
interwoven with the concept of family law, contract law, economics and feminism. As in U.S.
there is Uniform Premarital Agreement Act (UPAA) which was approved in the National Conference of Commissioners of Uniform State Laws, and is now adopted by half of its
states. Under the UPAA, “an agreement will not be enforceable if:-
(1) it is shown that there was lack of voluntariness on the part of one of the parties ( this is
already a defense provided under contract law); or
(2) on the ground that –(a) the agreement was substantially unreasonable and, (b) the
aggrieved party did not have adequate knowledge of the other party’s financial position.” Further the UPAA allows enforcement without financial disclosure wherein there has been
waiver of the right to enforcement or when the party against whom enforcement is sought
obtained or reasonably could have obtained the information from another source. “As Section
6(a)(2) of the UPAA holds that an agreement will not be enforceable if the agreement was
unconscionable when it was executed and, before execution of the agreement, [the party
against whom enforcement is sought]:
(i) was not provided a fair and reasonable disclosure of
the property or financial obligations of the other party;
(ii) did not voluntarily and expressly
waive, in writing, any right to disclosure of the property or financial obligations of the other
party beyond the disclosure provided; and
(iii) did not have, or reasonably could not have
had, an adequate knowledge of the property or financial obligations of the other party.” As viewed the general approach of this UPAA act is that parties should be free, within broad
limits, to choose the financial terms of their marriage, with the limits of due process in
formation, on the one hand, and certain minimal standards of substantive fairness, on the
other.38 As per prenuptial agreement as defined under Section 1(1): “an agreement between
prospective spouses made in contemplation of marriage and to be effective upon marriage
had the disadvantage of encompassing agreements that were entered by couples about to
marry but that were not intended to affect the parties” existing legal rights and obligations
upon divorce or death, e.g., Islamic marriage contracts, with their deferred Mahr payment
provisions.
In England, in the case of German heiress Katrin Radmacher's, wherein the Supreme Court
found, for the first time that prenuptial agreement with her former husband to be of binding
nature. The judges were of the view that in the right case a prenuptial agreement could have
decisive or compelling weight. Recent development towards pre-nup was provided by its Law Commission, wherein the
commission in its report on the reform of matrimonial property laws, called for the
introduction of standard formulas in order to resolve disputes over financial settlements and
publication of official guidance on what constitutes legitimate "financial needs". Professor
Elizabeth Cooke, Law Commissioner for property, family and trust law, said: "Pre and postnuptial agreements are becoming more commonplace but the courts will not always follow
them and lawyers are therefore not able to give clear advice about their effect. Qualifying
nuptial agreements would give couples autonomy and control, and make the financial
outcome of separation more predictable."Suzanne Kingston, a family specialist with the law
firm Withers, said: "These recommendations represent a welcome stride towards greater
autonomy and certainty for couples. If implemented, then a pre-nup fulfilling certain
conditions will be legally binding. However, it will not be possible to avoid meeting the
financial needs of partners and children and, as always, the question is what falls under the
definition of 'needs'?" So, the prenuptial agreement must solve the essentials of this
question in order to provide for a valid base to the current understanding of it.
Thereon, a prenuptial agreement, as it is understood in the West, defines how assets will be
divided in the event of a divorce, and helps limit the claims spouses can make on each
other. “Pre-nuptial agreements have no legal sanctity in India. This is because of the
differences in the definition of marriage itself- marriages in the US are regarded as contracts
entered into by equal parties, whereas the law in India views them primarily as a
sacrament.” Even then if such pre-nup agreement was to be considered in India, it would fall under the ambit of Indian Contract Act, 1872. As under Section 10 of the Act, 1872,
states that agreements are to be considered contracts if they are made by the free consent of
the parties. It is observed that pre-nuptial agreements do not offend against the constitutional protection
accorded to the institution of marriage and the right to marry. But similar to contract,
prenups are agreements between the parties, and there lies enforcement of duty to fulfill such
obligations and in case of breach of such duty, it leads to liability. Event when Contract law
has some loopholes, like in pre-nups there are aspects of agreements that parties may not
agree to bypass or waive. For example, parties may not agree to impose large penaltiesamounts far beyond those needed for compensation-in the case of non-performance, and they
may not waive the duty to act in good faith. In this regard we find that pre-nup is one such
tool to generate the sense of obligation in the minds of the parties entering into the union of
marriage and build in the co-ordeal contractual relationship between the two.
CONCLUSION:
“Marriage is a beautiful union between two souls, meant for each other”, is now only a
fictional belief of the people. Marriage is no more within the lines of an act for procreation of
children or form of strong social bond. Rather now it is a union between two people as an
agreement in form of contractual obligations, fulfilling the desires mentioned under such. In
this aspect while looking into the scenario of mahr or dower in Mohammadan law to
development of UPAA and pre-nups in other developed nations, we see that such agreement
has been created to ensure the protection of position of both the parties, but is indirectly
enforcing the duty of marital relationship over them. In this aspect it can be concluded that as
pre-nup is entered before marriage, the obligations under it are similar to that of a marital life,
which leads to enforcement of marriage through indirect means, which is actually done in
good faith as in this post modern period relationship rarely last for more than a month, and so
does marriage.
What is a pre-nuptial agreement?
A pre-nuptial (or pre-marital) agreement is an agreement made by a couple before they
marry or enter into a civil partnership, which sets out how they wish their assets to be
divided if they should divorce or have their civil partnership dissolved.
What is the legal status of pre-nuptial agreements?
Pre-nuptial agreements are not automatically enforceable in courts in England and Wales.
Traditionally, pre-nuptial agreements were unenforceable as being against public policy.
However, courts then became willing to attach weight to some pre-nuptial agreements, as
one of the relevant circumstances to be taken into account when deciding the division of
assets on divorce or dissolution.
In a landmark ruling in 2010, the Supreme Court held that courts should give effect to a
pre-nuptial agreement that is freely entered into by each party, with a full appreciation of
its implications, unless, in the circumstances prevailing, it would not be fair to hold the
parties to their agreement. The ruling does not make pre-nuptial agreements binding in
all cases; the fairness of upholding any particular agreement will be considered by the
court on a case by case basis. However, some pre-nuptial agreements will now have
effect in the absence of circumstances which would make this unfair.
Law Commission recommendation for enforceable agreements
In February 2014, following consultation, the Law Commission published its final report,
Matrimonial Property, Needs and Agreements. Among other things, it recommended the
introduction of “qualifying nuptial agreements” as enforceable contracts which would
enable couples to make binding arrangements for the financial consequences of divorce
or dissolution. These agreements, which would have to meet certain requirements, would
not be subject to the court’s assessment of fairness. Couples would not be able to
contract out of meeting the financial needs of each other and of any children. The
Law Commission’s report includes a draft Bill.
In January 2017, the Government said that it was considering the Law Commission’s
recommendation on qualifying nuptial agreements as part of a wider consideration of
private family law reforms and would respond in due course.
Private Member’s Bill
In the 2016-17 Parliamentary session, Baroness Deech (Crossbench) introduced a Private
Member’s Bill intended to make provision, among other things, for binding pre-nuptial
and post-nuptial agreements, subject to specified requirements. The Bill had its
Second Reading but did not make any further progress.
The position in Scotland
In Scotland,
pre-nuptial agreements are generally regarded as being enforceable and not
contrary to public policy.
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