STRUCTURING MATRIMONIAL LIABILITY While we are hopeful that our society maintains the sanctity of marriage, it is always prudent to plan for the worst in order to insulate the family wealth The holy institution of marriage, which has originated from the scriptures, is slowly getting tainted by the concepts of the western civilization and is there by evolving over time. The age-old...
STRUCTURING MATRIMONIAL LIABILITY
While we are hopeful that our society maintains the sanctity of marriage, it is always prudent to plan for the worst in order to insulate the family wealth
The holy institution of marriage, which has originated from the scriptures, is slowly getting tainted by the concepts of the western civilization and is there by evolving over time. The age-old tradition of the meeting of families and joint family discussions for marriage, has given way to a more independent approach of personal choice. Though such a choice, shall always be influenced (to some extent) by the advice of the parents, close family members and friends, gone are the days wherein marriage was considered as a blending of families, while the two individuals formally tied the knot. The positive side is that this evolution has allowed the concerned individual to gain greater autonomy in the process. The individual may choose to not marry, have a live-in relationship, marry after a certain age and/or may even choose to terminate the marriage, if they deem it so. While such autonomy is natural to a progressive society, individuals maturely also plan for the fallout of such marriages, just like a commercial contract. Important to note that unlike other commercial transactions, the parties suffer emotionally and financially when the marriage is terminated or dissolved. In light of the above, it has become necessary to analyze and plan one's estate in great detail to ensure that one is protected from matrimonial liability, if one decides to enter into holy matrimony.
Understanding Matrimonial Liability
Matrimonial liability in India, is a form of financial assistance provided to a party (interim, while the divorce proceedings are ongoing or permanent), in order to ensure that an equitable standard of living is maintained by the dependent party, similar to such standard before their separation. In common parlance, matrimonial liability is typically understood as an equal division of assets between the couple on account of their separation ("Principle of Community Property"). However, in India, the Principle of Community Property is not recognized. Rather, the manner of awarding financial remedies on separation is largely governed by the court's discretion as well as the consent terms agreed to by the parties (if any).
Financial remedies available to the couple are further dependent on the legislations applicable to them (depending upon the faith of the couple and other such factors), which may amount to separate legal remedies. For example, the Hindu Adoptions and Maintenance Act 1956 (primarily applicable to Hindus, Buddhists, Jains and Sikhs)1 ("HAMA"), provides for maintenance to include provision for food, clothing, residence, education, medical attendance and treatment2. Under HAMA, while a Hindu wife is entitled to maintenance, the husband is not.3 Pertinent to note that, the Bombay High Court in the case of Bhagyashri v Jagdish4, has affirmed that even a husband can seek maintenance from his wife, as per the Hindu Marriage Act 1955.
On the other hand, a remedy may also be pursued by the wife under the Criminal Procedure Code 1973 (which is secular in nature) ("CRPC"). The wife (or the ex-wife, as the case may be) may claim maintenance if it shown that: the husband / ex-husband has (a) sufficient means; and (b) neglected or refused to maintain her and/or their child. A remedy for maintenance under CRPC and HAMA exists in tandem and the mere fact that a similar analogous remedy is available under HAMA in a civil court, does not take away the jurisdiction of the magistrate under the CRPC to order maintenance to a Hindu wife5.
The quantum of maintenance awarded is fact-driven. The Supreme Court of India had in its pronouncement, set a benchmark for maintenance (on a case-to-case basis) to be paid by a husband to his estranged wife, stating that 25% of his net salary might constitute a "just and proper" amount as alimony.6 While there are statutory provisions around maintenance, consent terms arrived at between parties can override the provisions of these statutes and courts seldom interfere with such terms ("Consent Terms"). However, Consent Terms can be overridden by the courts (although seldom done) in cases where the wife gives up or relinquishes her right to claim maintenance altogether. This is considered opposed to public policy, and therefore, such an agreement, even if voluntarily entered, is not enforceable.7
Matrimonial liability has commonly been understood as an equal division of property on account of separation / divorce
Trusts & Matrimonial Liability
Basis offshore experience, we have seen that trusts are used as a driving vehicle not only for asset protection but also for structuring Consent Terms. Due to the nature of competing interests involved in the negotiation and execution of such Consent Terms, trusts provide for a unique structuring solution wherein concurrent and successive beneficial interests can be created, with greater flexibility. Typically, an execution of a basic set of Consent Terms involves one parent contributing funds for maintenance of the child, while the other is faced with the challenge of being financially prudent with the 'maintenance funds', while caring for the child. A trust structure on the other hand, allows the parents to be flexible with their duties, considering that their actions will only be for the greater good of the beneficiaries (typically, the child). For example, we see a parent with a background in finance take up the role of the investment advisor, so as to ensure that the trust corpus (i.e., the maintenance funds settled into the trust) is financially well maintained / invested and give the other parent the overall control of the trust (who acts as trustee of such trust).
On the other hand, families may use irrevocable discretionary trust structures as a mechanism for inter-generational transfer of wealth ("Family Trusts"). Family Trusts allow for asset protection and insulation from debts and liabilities, subject to such settlement being in accordance with the applicable laws and is being done without any fraudulent intent. Typically, such Family Trust (rather, the discretionary share in such trust) is understood to be personal property of the individual (which has been acquired prior to marriage and/or is considered inherited property). Therefore, it may be argued that there has been no contribution of the spouse of such individual in acquiring such property and thereby, should not be considered for the purposes of arriving at the Consent Terms. A view may also be taken, considering the Family Trust is a discretionary trust, and the individual has no concrete share in the same, that such Family Trust property cannot be equated to be the property of such individual.
Nuptial Agreements & Matrimonial Liability
Another popular offshore mechanism utilized, in order to deal with matrimonial liability and provide framework for the Consent Terms in a structured manner, is a marital / nuptial agreement ("Nuptial Agreement"). The contents of a Nuptial Agreement may vary widely, but it commonly lays out the terms of division of property amongst partners, terms of spousal support and their respective financial obligations in the event of a divorce (thereby influencing the Consent Terms). It is important to note that a Nuptial Agreement must be simply an agreement contemplating the terms of separation in the case of dispute, separation and/or divorce and must not be interpreted as a future separation agreement (i.e., parties contracting for separation at a predetermined future date)8.
The Nuptial Agreement must be a legally binding and valid contract as per the Indian Contract Act 1872; both the parties should sign only after proper legal representation, preferably in front of witnesses or the notary; and clauses in the agreement should be reasonable, so as to ensure both parties benefit equally. While the benefits of Nuptial Agreements are manifold, in light of lack of formulation of relevant laws or policies and the uncertainty in terms of the judicial stance towards Nuptial Agreements, the validity of Nuptial Agreements in India remains ambiguous.
CONCLUSION
In light of the above and considering the applicable laws, it has become necessary to understand and structure personal assets in a legally compliant and efficient manner. While we are hopeful that our society maintains the sanctity of marriage, it is always prudent to plan for the worst in order to insulate the family wealth.
Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.
1 Section 2, HAMA 2 Section 3(b), HAMA 3 HAMA mainly provides for maintenance of the wife, widowed daughter-in-law, minor children, aged parents 4 AIR 2022 Bom 116 5 Ram Singh v State and Ors, AIR 1963 All 355 6 Kalyan Dey Chowdhury v Rita Dey Chowdhury Nee Nandy, AIR2017SC2383 7 Ramachandra Laxman Kamble v Shobha Ramachandra Kamble, 2018 SCC OnLine Bom 7039; Ranjit Kaur v. Pavittar Singh, 1991 SCC OnLine P&H 693 Krishna Aiyar v Balammal, (1911) ILR 34 Mad 398
Bijal Ajinkya is a Partner in the Direct Tax, Private Client Practice and Investment Funds Practice Groups in the Mumbai office. With over 20 years of experience, on the tax side, Bijal primarily focuses on international tax, structuring of inbound and outbound investments, M&A tax negotiations, providing opinions on complex tax issues on international tax, GAAR, POEM, PE, MFN, etc. Bijal has also advised on the tax and regulatory aspects of incentive plans rolled out by Indian companies and MNCs for key employees and executives in India. On the tax litigation front, she has immense experience in providing advice on unique litigation strategies and has been a lead advisor in many successful and path breaking tax litigations in India. She has also served as an expert witness on Indian tax matters in an international arbitration. She is handling a tax information exchange case which is a first precedent case on the interpretation of treaty provisions with a country in the Channel Islands. She has led many successful international tax litigations in India; on the India Mauritius Tax Treaty – Azadi Bachao Andolan, Applicability of Minimum Alternate Tax for Foreign Portfolio Investors for International Financial Associations, Taxation of Outsourcing in India for Morgan Stanley, Taxation of Online services for Dun & Bradstreet, Taxation of a Mauritius Protected Cell Company for Nicholas Applegate, to name a few.
By: - Vatsal Singh
Vatsal Singh is an Associate in the Private Client Practice and General Corporate Practice Groups in the Mumbai office. He has graduated from the West Bengal National University of Juridical Sciences, Kolkata in 2020.