This article on ‘Pre-nuptial agreement in India: All you need to know’ was written by Ananya Bansode, an intern at Legal Upanishad.
In this article, we will be focusing on prenups or pre-nuptial agreements in India, the legal validity of prenups in the country, their importance, and their various advantages and disadvantages. A pre-nuptial agreement is a source to protect the financial assets of people who are soon to be married or couples who plan on tying the knot sooner or later.
What is a pre-nuptial agreement?
A pre-nuptial agreement or a prenup is an agreement that is signed by the two people who are soon to be married. This agreement includes the various details as to how the various financial assets get distributed in case of death, divorce, or separation. It has different terms mentioned including the penalty in case of adultery.
Prenups are a way to ensure that both the individual’s financial assets are distributed proportionately and the rest other things such as custody etc. are taken care of in case there is a dissolution of marriage.
Prenups in the past were mostly used in the Western countries but with the divorce rates in India increasing now, people in the country have started to turn towards prenups so their property and other financial assets are not at stake in case the marriage ends.
Are pre-nuptial agreements valid in India?
In India, pre-nuptial agreements are not valid as marriage is not considered a contract under the personal laws of India. Marriages in India are performed under Personal laws and these laws do not validate pre-nuptial agreements. Prenups are considered ordinary agreements in India except in the state of Goa because the state of Goa follows the Portuguese Civil code, of 1867. However, these contracts can be enforced under the Indian Contract Act if they fulfil the conditions such as:
- The agreement must be in writing and must be voluntary, fair and mutually signed by both the individuals.
- No two of either party must be coerced or forced to sign the contract i.e. there must be free consent by both the parties.
- The agreement must be notarized and certified.
- The agreement must state all the financial assets owned by both the parties
- The agreement should not have any false information
- The agreement shall compromise all of the provisions discussed by the parties.
In various western countries such as Italy, France and Canada there is a system of rules that governs the management and ownership of property of the married individuals known as the Matrimonial regimes alongside prenups. Prenups can be legally binding under the Special Marriages Act, 1954 if all the necessary documents have been registered at the Registrar’s office. Nevertheless, all the terms and conditions in the pre-nuptial agreement must be reasonable to the court.
In the case of Mohini Jemadai v. Basanta Kumar Singh (1901), the arrangement claimed that the husband would have to comply with his mother-in-law’s orders and that he shall never make his wife leave her paternal home. After living for approximately 15 years with his in-laws in their house, the husband left the in-law’s house because of such irregularities and requested his wife to come to stay with him at his house.
The court indicated that the Hindu law forces an obligation upon the spouse to live with her significant other wherever he chooses to stay. Just in case there’s any interpretation which expresses that the spouse won’t be at freedom to dispose of his significant other from her parent’s home to his own house and in case such arrangement is allowed, at that point, it’ll disobey Hindu law, as a result, such an arrangement is void according to the law and the court would not maintain the legitimacy of the prenup.
Importance of pre-nuptial agreement
Pre-nuptial agreements help save time when things get dragged to the court. Signing a prenup makes both the individuals furnish their assets, property, possessions, and liabilities before getting married and hence prevents the individuals from further hassles during separation or divorce regarding child custody, alimony, child maintenance etc. In such scenarios prenups haven considered to be productive.
Prenups are a good way of protecting the ancestral property or the hard-earned money of an individual by sorting finances out with the spouse-to-be before tying the knot. It acts as a security for the property in case things go south in future.
Most of the laws regulating alimony after divorce support the women’s spouses and forget about the male spouses leaving them high and dry, this is when a prenup agreement comes to the rescue securing the finances of that of a male spouse. These prenups prevent male spouses from being financially abused by the female spouses in case of separation for the purpose of seeking maintenance.
Advantages of pre-nuptial agreements
- It reduces the chances of conflicts between the parties when things are dragged to the court.
- It dictates a transparent and clear sight of the liabilities of both parties.
- Clarifies the financial rights of both spouses with proper lucidity.
- Protects the assets of both individuals in case of separation.
- Secures the custodial rights of both individuals without any hassles.
Disadvantages of pre-nuptial agreements
- It can affect adversely the life of both individuals after the marriage.
- Amplifies the importance of money rather than the idea of getting married.
- It somehow suggests the idea that the marriage is not gonna last forever as it is in some way encourages the end of a marriage.
Although prenups are not that common in India, they are now a growing trend as people want their finances to be safe. The legal validity of prenups needs to have a proper standing as it helps people in sorting things out without any hassles.
Though it doesn’t really have a legal drawback a lot of people in the country discourage it because it is a social taboo in India. So the only way to encourage people to do so is by giving the pre-nuptial agreement a legal standing and a law that governs it.
Pre-nuptial agreements are a good way of securing financial assets in today’s era where relationships split easily. Prenups are very economical when it comes to litigation costs of separation, divorce and maintenance etc. Although the idea of prenup has been very well adapted in the western countries, it is still a long way till the idea of prenup gets adopted in India since the people consider marriage to be holy matrimony of two individuals, such a thing as a pre-nuptial agreement puts an idea of the marriage to not last or the idea that the two individuals are getting married only with a view to ending the marriage sooner or later.
Hence, a pre-nuptial agreement is believed to be against public policy.
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