Introduction
Meaning of Prenuptial Agreement
Prenuptial Agreement, usually common among affluent citizens, a form of contract relating to division of property in the event of death, divorce or bankruptcy after marriage.
A prenuptial agreement (antenuptial agreement, premarital agreement or commonly referred to as a prenup), is a written contract entered into by a couple prior to marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce.
Objective of PreNup
Couples enter into a written prenuptial agreement to
- supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property and retirement benefits and savings, and the right to seek alimony (spousal support) with agreed-upon terms that provide certainty, and
- supersede many of the default marital laws that would otherwise apply in the event of death or bankruptcy of the spouse, and
- clarify their marital rights
In context of Nepal
Statute
Section 102 of The National Civil (Code) Act, 2017 (2074) To be according to agreement:
Notwithstanding anything contained elsewhere in this Chapter, if there exists a written agreement between the husband and wife on the partition share or alimony to which the wife is entitled upon divorce, it shall be according to such agreement. Provided that no agreement which is against the interest of a minor may be made.
Does it really have to be a PreNuptial?
Not necessary, this form of agreement can be effected in the form of postnuptial agreement as well. Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married. When divorce is imminent, postnuptial agreements are referred to as separation agreements. (सम्बन्ध विच्छेदको मिलापत्र कागज)
In which event does this agreement apply?
In Nepal this agreement applies only in the event of divorce of husband and wife. It doesn’t apply in the case of death, insolvency of the spouse or other in the events in marital status.
Default Marital Laws that applies in the event of divorce
How to divorce?
The husband or wife, as the case may be, desiring to get the relationship divorced shall file a petition (नालिस) in the district court. The court will try to make conciliation, if court fails to do so, the divorce will be effected.
Can be done Mutually
If both the husband and wife so desire, they may divorce the relationship of husband and wife at any time.
Can be effected by Husband
(a) If the wife has been living separately for three or more consecutive years, without consent of the husband,
(b) If the wife deprives the husband of maintenance costs or expels him from the house,
(c) If the wife commits an act or conspiracy likely to cause the grievous hurt or other severe physical or mental pain to the husband,
(d) If the wife is proved to have made sexual relation with another man.
Can be effected by Wife
(a) If the husband has been living separately for three years or more consecutively, without consent of the wife,
(b) If the husband deprives the wife of maintenance costs or expels her from home,
(c) If the husband commits an act or conspiracy likely to cause grievous hurt or other severe physical or mental pain to the wife,
(d) If the husband concludes another marriage,
(e) If the husband is proved to have made sexual relation with another woman,
(f) If the husband is proved to have raped the wife.
How long does it take to effect a divorce?
In normal course of petition made for divorce, the court shall, to the extent possible, remind and convince both the parties and conciliate them. Provided that if the husband and wife do not agree to conciliate between them despite being reminded and convinced by the court to that effect, the court shall effect divorce after one year of the filing of the petition.
This time usually takes because of the need to confirm the partition shares and other terms of amount/alimony determination, custody of children etc. However, if the separation agreement is executed between husband and wife for the divorce, the process can be sped up.
What is the wife entitled to?
The wife is entitled to the following:
Partition Share of Property
The partition of property is governed by Chapter-10 Provisions Relating to Partition of The National Civil (Code) Act, 2017 (2074). General rule is that partition of property in common and debts in common shall be so made that partition shares thereof are equal.
If divorce is to be effected by the following reasons, if the wife so demands, cause partition to be effected between the husband and wife before effecting divorce:
- If the husband deprives the wife of maintenance costs or expels her from home,
- If the husband commits an act or conspiracy likely to cause grievous hurt or other severe physical or mental pain to the wife,
- If the husband concludes another marriage,
- If the husband is proved to have made sexual intercourse with another woman,
- If the husband is proved to have raped the wife.
Sometimes husband might not have obtained partition from his father or other coparceners. In such case, If it appears that it may take a long time to effect partition, the court may effect divorce between the husband and wife and order the husband to provide the wife with monthly expenses as alimony according to the property and income of the husband until the partition is effected. However, if such a woman concludes another marriage before effecting partition, she shall not be entitled to a partition share.
Lumpsum Amount / Alimony
If the wife who effects divorce desires to obtain from the husband a lump sum amount or annual or monthly alimony (खर्च भराइ) or expense, instead of the partition share, the court may order the husband to provide such a wife with a lump sum amount or annual or monthly alimony or expense on the basis of his property or income. However, if such a wife concludes another marriage, it is not required to provide such amount or alimony.
Maintenance Cost
If the wife, who has not obtained partition from the husband for there being no property for partition, desires to receive maintenance costs from the husband and the husband has income, the Court may order the husband to provide maintenance costs to the wife according to the income of the divorced husband. However, if such a wife concludes another marriage or if the income of the wife is higher than that of the husband, it is not required to provide such costs.
What happens eventually to the property obtained by the divorcee woman from her previous husband?
On the death of a divorcee woman, her son, daughter, if any, shall be entitled to her property, and if not, the previous husband shall obtain the property received by her from such a husband, and the successor on her mother’s side shall obtain the other property.
Categorization of Property
There are two different types of property for the purposes of a divorce. Property that the couple bought during the marriage is called “marital property”. Property that belonged to you before the marriage or was a gift to just you from someone other than your spouse is called “separate property”. Marital property can be divided between the two spouses.
Marital property includes all property either spouse bought during the marriage. It does not matter whose name is on the title. For example, if a couple bought a home, but only the husband’s name was on the deed, the wife would still be entitled to some of the value of the home if they were to get a divorce.
Separate property is property that one of the spouses owned before the marriage. For example, a bicycle that the wife had owned since before her marriage would be considered separate property. Any inheritance one spouse gets, even during marriage, is separate property. So are personal gifts (unless they came from the other spouse) and payments for personal injuries.
Can separate property become marital property?
Separate property can become marital property if it is mixed with marital property. For example, if one of the spouses uses money they had before the marriage to buy a house for the couple, that money might become marital property.
What happens if the value of my separate property goes up during my marriage?
If the value of the separate property goes up only by luck (for example, random changes in the market) then the rise in value is still separate property. If the value of the property goes up because your spouse helped to improve the property, then the rise in value may be considered marital property.
Statute of limitation (हदम्याद)
A person aggrieved from any act done or action taken under this Chapter may make a lawsuit within three months after the date of accrual of the cause of action or knowledge of such an act or action.