Matrimonial agreements and drafting

Most matrimonial disputes end in a document rather than a judgment. Whether that document holds up depends almost entirely on how it was drafted and how it was placed before the court.

• s. 13B(1) HMA
• s. 23 Indian Contract Act, 1872
• s. 89 CPC — settlement
• Order XXIII r. 3 CPC — compromise

The settlement recorded on a joint petition

This is the most consequential document in matrimonial practice. It is not merely a private contract: placed before the Family Court with a petition under section 13B and recorded in the statements of the parties, it becomes part of the record on which the decree is passed, and it is enforceable accordingly. The heads it must cover are set out on the page on mutual consent divorce.

The drafting principle is simple and constantly ignored: every obligation should be capable of being performed and verified without either party having to trust the other. Sums by traceable banking channel on identified dates; documents handed over against written receipt; withdrawals of pending cases in a stated sequence with each step conditional on the last.

Prenuptial agreements

Prenuptial agreements occupy an uncertain position in Indian law. Marriage under the personal laws is not treated as a contract in the way it is in several other systems, and an agreement that purports to oust the jurisdiction of the court or to defeat a statutory right — to maintenance, for instance — faces the objection that it is opposed to public policy under section 23 of the Indian Contract Act. Courts have declined to enforce such agreements in that form. For marriages under the Goa civil code the position is different.

What a carefully drafted pre-marital document can still do is record what each party brought to the marriage, identify separate and self-acquired property, record intentions as to jointly acquired assets, and evidence disclosure made at the time. That evidentiary value is real, particularly where a dispute later turns on what belonged to whom. It should be entered into with a clear-eyed understanding of what it does not guarantee.

Separation agreements

Couples who separate without immediately filing for divorce frequently need an interim arrangement: who lives where, what is paid and by whom, how the children's time is divided, how joint accounts and loans are handled. A written separation agreement gives the arrangement definition, and creates a contemporaneous record of the date of separation — which becomes directly relevant when the one-year requirement under section 13B(1) is later pleaded.

Custody and visitation schedules

A schedule is a calendar, not a statement of intent. Specific weekends, specific hours, a named handover point, an allocation of school holidays, a rule for festivals and birthdays, defined times for calls, a notice period for travel, and a mechanism for a missed visit. Where the schedule is to be recorded in a consent order, it should be drafted as if a stranger will have to enforce it, because in the event of a breach that is exactly what happens.

Cohabitation agreements

Partners who live together without marrying — including partners who cannot marry under Indian law — often need to put arrangements in place that marriage would otherwise supply: contributions to shared expenses and property, ownership of assets acquired together, and what happens on separation. Alongside the agreement, the instruments that usually matter more in practice are a will, nominations on insurance, provident fund and bank accounts, a durable power of attorney, and a healthcare authorisation naming the partner.

Legal notices

A legal notice is not a formality and it is not free of consequence. It fixes a position, creates a contemporaneous record, and is produced in every subsequent proceeding. A notice that alleges more than the sender can prove is used in cross-examination for years afterwards. Replies deserve the same care: an unanswered notice invites an argument that its contents were accepted, and an over-written reply supplies the other side with material it did not have.

Drafting failures we see most often

• General waivers of maintenance that do not name each provision under which a claim could later be brought
• Alimony paid in cash, with no traceable record and nothing recorded before the court
• Withdrawal of pending cases promised but not sequenced, so that one party performs and the other does not
• Visitation expressed as reasonable access rather than as dates and hours
• Streedhan and articles described in general terms, with no schedule and no acknowledgement of what has already been returned
• No default clause, so that a breach after the decree requires fresh litigation on the basic question of what was owed
• A settlement signed but never recorded before the court, leaving it as a private contract when it could have been part of the decree

Questions we are asked most often