Goa: Laws
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Goa Civil Code
Pre nuptials
Moyurie Som, Dec 17, 2023: The Times of India
Weeks before Goa residents Peter and Mary (names changed) got married, they started drawing up lists. Not guest lists or the dinner menu but inventories of the property and valuables they owned, for their prenuptial agreement. The day before they registered their marriage, they sat down with their families to sign the agreement – a contract that lays down how they would share and hold their individual properties as a married couple, and in the event of a divorce.
Prenuptial agreements aren’t legal for the vast majority of Indian couples. In India’s common law jurisdiction, marriage is a sacrament, not a contract, so any contract in relation to marriage is considered void. The old debate on the need to legalise prenups was stirred recently when a family court judge in Delhi called for them in an observation during a divorce case hearing.
However, Goan couples have had the exclusive privilege of making prenuptial contracts for decades, thanks to the Portuguese Civil Code, enacted in 1867 while Goa was a Portuguese colony. “The Goa family laws comprise a part of the Portuguese Civil Code, which allows for such contracts to exist,” says Albertina Almeida, a lawyer and human rights activist who has worked extensively on the matrimonial rights of Goan women.
“Until 1961, when Goa was still a Portuguese colony, the laws of Portugal would extend to its citizens in Goa. Goans could also be part of the Portuguese legislature back then,” she says. That changed with the passage of the Goa, Daman and Diu (Administration) Act of 1962. “Most of Portuguese law was then replaced by Indian law, but some parts of it were left untouched by the Indian government,” Almeida adds. Among other laws, the state’s family law and the laws for succession and property still consist of the Portuguese Civil Code, allowing prenuptial agreements to be legal only in Goa.
Not The Default System
However, for a legally enforceable prenuptial agreement, you have to get married under the Goa Civil Code. And there is a caveat. “Goa’s marriage laws extend only to marriages where the male spouse is a Goan resident, or the child of Goan residents,” Almeida says. The bride may or may not be Goan. Although prenups are legal in Goa, Almeida says it’s not the default arrangement. The state has the concept of matrimonial property, so couples getting mar ried under the Goa Civil Code co-own all properties acquired before or after marriage “as one unit”. If they divorce, either spouse is entitled to half the share of these joint assets. They can opt out of this system through a prenuptial contract, “and that contract will determine in what form they hold their matrimonial properties”. Almeida says Goa has a separate set of matrimonial laws rooted in the Portuguese Civil Code due to Article 44 of the Indian Constitution that says: “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
“Matrimonial laws under the Portuguese Civil Code allow Goa to exercise a uniform civil code. It is in line with Article 44 that the Indian government chose not to extend its marriage laws to Goa after annexation,” she says.
Prenups Not Popular
However, Almeida’s research shows prenups haven’t been popular in Goa. “I found that there were just a handful, including in the capital city Panaji – barely five prenuptial contracts over a period of 4-5 years,” But she says the number of couples consulting her for prenuptial agreements has increased over the years.
Although Goa’s uniform civil code is deemed an ideal matrimonial system for the rest of India, women’s rights lawyers like Almeida and Flavia Agnes say it does not ensure women’s rights in marriage. “Most of these prenuptial agreements are to deny women who own property their equal share in it, and the women are not aware of what’s happening to them… The husband makes such a contract that the woman doesn’t get a share,” Agnes told TOI. She had attended the stakeholders’ meeting on prenuptial agreements, called by the Maneka Gandhi-led Union women and child development ministry in 2018.
Agnes prefers the default system of property co-ownership under Goa’s marriage laws. “You can say that’s better than the current situation where the husband dominates. Whatever property is owned by him, the wife also has an equal share… (prenuptial agreement) will not be favourable to women, because men will manipulate.”
Besides, Almeida says, it’s not easy for women to demand a prenup. “A prenuptial agreement is seen as a sign of not trusting your spouse. So, this is my sense that if a woman wanted to enter into this agreement, it would be seen as suspicious.”
FAMOUS COUPLES WHO SIGNED PRENUPS
ANGELINA JOLIE & BRAD PITT
The two were together for 12 years but were married for only two years. The $400 million prenup agreement signed by the couple at the time of their marriage had a clause on infidelity for the benefit of Jolie in case Pitt cheated. However, after the couple divorced in 2016, the custody of their six children became a bigger issue than wealth and assets.
CATHERINE ZETA-JONES & MICHAEL DOUGLAS
The prenuptial agreement between the Hollywood couple states that Zeta-Jones would get $2.8 million for every year of marriage and an additional $5 million if Douglas cheats. It also has a confidentiality clause that bars ZetaJones from revealing personal details of their marriage.
KIM KARDASHIAN & KANYE WEST
The agreement between Kardashian and West in 2014 stated that the former would be given $1 million for every year of marriage with a cap of $10 million and that she would keep all gifts given to her by West. After divorce in 2022, they agreed that Kim would keep their $50-mn home.
NICOLE KIDMAN & KEITH URBAN
Urban and Kidman signed a prenup promising the husband $600,000 for every year their marriage lasted only if he avoided excessive drinking and illegal narcotics. They married in June 2006, and in October 2006, country music singer Urban checked into rehab for an alcohol addiction.
DONALD & MELANIA TRUMP
Former US first lady Melania has renegotiated her prenuptial agreement with her husband and former US President Donald Trump thrice since their marriage in 2005. This year, when she changed terms for the third time, she was most concerned about increasing the amount of the trust fund that has been set up for their only son, Barron.
