Understanding Prenuptial & Parenting Agreements and the essential clauses- Effective drafting tips.

February 10, 2022 — Leave a comment
Source: Times of India

Author: Aarlin Moncy (HILSR, School of Law, Jamia Hamdard)

This article will give you a brief understanding about the concept of Parenting & prenuptial Agreements and how to draft them.

Introduction

Family is considered to be one of the most important as well as the most influential part of a person’s life. People say that we get influenced by our surroundings, but we forget to mention that initially before our friends or workplace, our first hand interaction is with our family. So it is obvious that the impact (positive or negative) of a family on a person’s life can’t be ignored.

As from the title of this article, you may or may not be familiar with the concept and the importance of this topic. But before further discussing the topic in detail, let me ask you one question: Is marriage a contractual union/relationship? If your answer to this is “YES”, then concepts like pre-nuptial agreements, post-nuptial agreements, parenting agreements, etc, would be an easier concept to you as these concepts are getting more common in the modern day and are practised extensively in the developed countries. If your answer to the above question was “NO”, then let me help you understand the entire concept through this article. 

What is a parenting agreement?

A parenting agreement is a written agreement mutually agreed by the married couple, and are made usually after the couple decides to separate and part ways with a common objective or purpose to support their child or children in order to give them all the care they deserve from both their parents, even though they are separated (legally). Parenting agreements are formed on the basic principle of joint custody or shared custody, with an aim to promote the welfare of the child.

A parenting agreement can be made as a part of a prenuptial agreement or can even be made as a separate agreement after the couple decides to split.

What are prenuptial agreements?

Pre-nuptial agreements are those agreements that are made before the marriage, now these agreements are primarily made to serve as a medium to resolve future uncertainty or disputes between the couple. These agreements are majorly drafted in order to protect the financial assets of the couple, and that’s why most of the clauses in these agreements relate to assets of each partner, how it needs to be divided, how much amount needs to be transferred as maintenance, whether the amount needs to be paid only one-time or it needs to be paid on monthly basis by one of the partners to the other, how much amount needs to be transferred to support their child/children, etc, are the clauses that are present in a prenuptial agreement. The couple can decide by themselves as to what all they require and need in a prenuptial agreement, and as per their requirements, a customised agreement can be drafted.

It is to be noted that prenuptial agreements may include a parenting clause too, but these agreements are not at all similar to parenting agreements, as both these agreements serve different purposes after all. The former is made before the marriage in order to protect the financial assets of the couple during their divorce and the latter is made only to serve as a mutual agreement with respect to parenting and giving care to their child/children post-separation or divorce.

The legality of Prenuptial agreements

If the legality of these agreements is considered then, these agreements are not legal in India, because in India, marriages are not considered to be contractual relation/union between man and woman, rather it is seen as a sacred and spiritual union of the two beings. Hence, prenuptial agreements are not legally valid in India, but that doesn’t mean that these agreements are irrelevant. Prenuptial agreements are used and are more prevalent in the west, this is simply because of the difference in the ideology, culture, tradition, laws, etc.

Is a parenting agreement similar to a parenting plan?

Parenting agreements lay out a planned guideline stating how the separated couple can raise their child/children without compromising their child’s best interest. Hence, a parenting plan or a parenting agreement are used as a synonym to one another. In other words, we can say that a parenting agreement lays down a parenting plan focusing on how the partners shall carry out their roles and duties through a joint or shared custody of their child.

These plans can only be drafted if the court has granted joint or shared custody of the child, in case the custody of the child has been given to either of the two partners, then these agreements are not valid. 

It is important that while the agreement or the plan is drafted, suggestions from both sides need to be taken, partners may negotiate, and only if there is a mutual understanding between them, then only such plans or agreements may be finalised. While drafting such agreements, all the essentials of a valid contract must be kept in mind, else enforcing such agreements or the validity of such agreements would be an issue.

Are parenting agreements legally enforceable and binding in India?

This is one of the most important questions that need to be highlighted because if these agreements are not enforceable in the court of law or are not legally valid then there is no point in referring to these agreements. The question of legality is like a test to check whether such agreements or plans are valid or not in India. As we know that in India, marriages are not seen as any contractual form of union between two parties, rather it is seen and celebrated as spiritual, sacred and holy. Hence, these agreements stating the position of the two partners after their separation and providing guidelines on how to raise their child or children are contradictory to the traditions, religious beliefs and culture of many Indians and also degrades the meaning and purpose of Indian marriages.

But before diving into this question, let us understand first that when can the partners refer to a parenting agreement? The simple answer to this is when the court grants shared or joint custody of the child. Interestingly, in India, there aren’t any laws that provide for joint or shared custody of a child. Usually, the Indian courts grant the custody of the child as per the interpretation of the statutes and also focusing on various other factors like, the overall condition of each parent, whether they are stable or not, financially well or not, their relationship with their child, etc, and also taking into consideration the child’s interest. 

But, the jurisprudence and the court’s understanding behind determining the question of child custody has been changing, and the reasons could be many, but one of them could be the influence of the west and accepting the fact that a child would need the love from both of his/her parents no matter what, and hence, we can see that the Indian courts through their judgements are granting shared or joint custody of their child, but not in all cases. It largely depends upon the facts and circumstances that are different from case to case. The major principle that is prevalent in each judgement is ‘the best interest of the child’ and the same shouldn’t be ever compromised.

The apex court in, Mausami Moitra Ganguli vs Jayanti Ganguli, observed that, “it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody.”

The Supreme Court in Gaytri Bajaj vs Jiten Bhalla, held “The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor.”

In Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Anr., the Apex Court has observed that whenever there is a question before the Court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties/parents but solely and predominantly on what would best serve the interest and welfare of the child.

In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was held that, “The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by taking money as a determining factor, or by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”

From the above discussion, we can understand that the courts take the interest of the child as of great value and it is the governing principle in each of the judgements relating to custody of a child.

Coming back to the question of the legality of a parenting agreement/parenting plans, if the partners have already drafted one, then the court might consider the same but it depends on the factor that whether such agreements are providing for the best interest of the child or not, and if it is providing, then the court might accept such plans and validates it by passing an order.. The court might make a few amendments to it keeping into account the principle of  “what’s best for the child”. 

These agreements are very common in the west, but surprisingly back in 2015, the law commission of India released a report titled as, ‘Reforms in guardianship and custody laws in India’. The report even mentioned the concept of a parenting plan, and it also stated that such plans are not legal documents and the approval of the court is mandatory to make such agreements enforceable and legally binding.

The court may amend these agreements/plans whenever needed from time to time, and it shouldn’t be construed as a final order/judgement passed by the court.

What are the essential clauses in a parenting plan/agreement?

Following are some of the essential clauses that you may consider including while drafting a parenting plan or agreement either jointly or individually. 

Note- The same shall have legal effect only after the court has reviewed it and has passed an order/judgement regarding such agreement keeping in mind that the child’s interest must be served through such an agreement.

  1. Visitation rights clause- In this clause, you may specify your rights relating to visiting your child, in case the child is not staying with you. You may draft this clause by taking into account all the scenarios and making it without any ambiguity. Your clause shall answer questions such as, when are you allowed to visit, timings, duration, etc.
  2. Major decision making & guidance clause- In this clause, you can specify as to who will be given the right relating to making major decisions only in case if the child has not attained the age of majority, and whether such rights are equally shared among the partners or not.
  3. Physical custody clause- As from the name only one can understand what all this clause shall include. This clause shall include and shall briefly explain the schedule stating the time, duration, days, months, etc as to for how long each partner shall have the physical custody of their child, whether physical custody will include staying with maternal and paternal grandparents, etc. For convenience, a schedule may be drafted to highlight the agreed time and duration of physical custody.
  4. Maintenance clause- This clause may state the monthly compensation/maintenance that needs to be provided by both the parents to their child for the purpose of education, health, basic necessities, entertainment, sports, etc. The partners/parents may start a joint account where the maintenance amount can be easily transferred. The right over the maintenance amount shall only be with the child.
  5. Physical & Mental health care & support clause- This clause shall provide for the medical assistance and expenses that the child might need anytime. Acknowledging the fact that the health of the child needs to be prioritised by providing the best medical assistance and support.
  6. Dispute resolution clause- This clause is important as this clause may function or will be referred to during any dispute or difference that may arise between the partners relating to any of the clause or the entire agreement as a whole, and such disputes shall be resolved only through the agreed and mentioned dispute resolution mechanism.
  7. Weekends, School holidays, festivals, birthdays, trips/tours clause- This clause shall state the rights of each of the partners relating to taking their child out during weekends, festive season, during birthdays, taking them on a trip or tour, etc. This clause can also be drafted on a tabular form describing all the possibilities as to when and for how long each of the partners are permitted to take their child out with them.
  8. School related responsibilities clause- This clause shall state all the roles and responsibilities as a parent and shall be equally divided between the partners. Responsibilities such as attending the Parent teachers’ meeting, attending the annual function, picking and dropping the child, etc.
  9. Contact with Relatives and Significant Others clause- This clause shall state whether the child be allowed or permitted to meet the extended families of each of the partners or not.

Conclusion

By now you must be familiarised with the concept of parenting agreements. It is a great step by the Indian judiciary by allowing and promoting joint or shared custody and giving the partners/couple an opportunity to customise their own parenting plan. It is important that the interest of the child is not only served through court orders but the same shall also be promoted through such agreements and plans. 

The importance of a shared or joint custody should be discussed and further be improved in order to provide a robust legislation relating to joint custody. The couple before finalising their separation need to be properly counselled and such counselling is necessary if they have a child together. The judiciary shall never compromise on the present prevailing principle of “best interest of the child”, and it shall always aim to pass such directions, orders and judgements that would not only be best for the overall development of the child but shall also focus on preventing mental health issues that the child may face during the time of divorce of his/her parents.

References    

Leave a comment