In India, prenuptial agreements are neither legal, nor valid under the marriage laws because they do not consider marriage as a contract. A marriage is treated as a religious bond between husband and wife and prenuptial agreements don’t find social acceptance. However, these are governed by the Indian Contract Act and have as much sanctity as any other contract, oral or written.
DEFINITION:
A prenuptial agreement is a written contract created by two people before they are married. A prenuptial agreement typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
A prenuptial agreement is entered into before marriage. This agreement can set forth what will happen to you and your spouse’s assets and income in the unfortunate event of divorce, separation or death. Most importantly, a prenuptial agreement can preserve the nature of property in the event the marriage ends. In other words, separate property can remain separate, instead of being subject to community property or equitable distribution laws.
Though after the standard application for understanding of the term “Prenuptial Agreement” one could correspond the term for various definitions provided qua from mediums of dictionaries to get a holistic view of the term discussed.
Merriam Webster (Dictionary): an agreement made between two people before marrying that establishes rights to property and support in the event of divorce or death.
Whereas as per the (Dictionary) of The Cambridge the term “Prenuptial Agreement” is an official document signed by two people before they get married that says what will happen to their possessions and/or children if they divorce.
The Collins (Dictionary) defines Prenuptial Agreement as ‘written contract made between a man and a woman before they marry, in which they state how their assets such as property and money should be divided if they get divorced’.
INTRODUCTION:
To understand the concept of Prenuptial Agreements today it gets very vital to track its origin and see where the concept came in existence from. Prenuptial Agreements are seen as a necessary tool for the modern era where metaphorically speaking, divorce takes place faster than marriages. The concept of Prenuptial Agreements isn’t new; this concept was widely accepted in various religions but in different forms. In Anglo-Saxon society, marriage had a distinctly contractual flavor. The groom purchased the wife’s guardianship, and thus the right to marry her, with a price fixed according to her rank in society. If we take the example of Ketubah marriage practiced among Jews, it shows slight impression of a valid prenuptial agreement.
Ketubah marriage is a Jewish prenuptial agreement. The Ketubah basically consists of rights of the wife and obligations of a husband towards his wife and along with that, it also mentioned the maintenance claim of a wife from the husband during the event of dissolution of marriage by either death of the husband or divorce. Just like in Ketubah marriage in Jews, the concept of Dower in Mahtomedi marriage also has characteristics of Prenuptial Agreements.
Even though Indian laws don’t recognize the prenuptial agreements under the marriage laws but when couples get married these days they discuss of getting a prenuptial agreements to protect their interests. The contents of Prenuptial Agreements vary from agreement to agreement. Whether to recognize the prenuptial agreements in India is still a debatable issue as the government says this is not the right time and moreover they’re valid contracts and thus they are legally binding and enforceable under contract act 1872.
LEGAL ANALYSIS OF PRENUPTIAL AGREEMENT:
Prenuptial Agreements in India sounds like an alien concept. India is a country that boasts of its rich culture and the love and warmth that people share. Unlike in India, European countries accept and recognize the concept of Prenuptial Agreements, in European countries marriage is a contract between a husband and a wife whereas in India marriage is considered as a sacrament and thus introduction of Prenuptial Agreements is a foreign concept. Ruling out any immediate change in law to recognize prenuptial agreement, the government has taken a view that it’s an “urban concept” and “too early” to give it a legal backing.
VALIDITY AND ENFORCEABILITY:
While Prenuptial Agreements are common in western countries, they are still not warmly welcomed in the Indian society. Since marriages have a sacred status ascribed to them, it becomes difficult for us to weigh them in contractual terms.
In India, prenuptial agreements are neither legal, nor valid under the marriage laws because they do not consider marriage as a contract. A marriage is treated as a religious bond between husband and wife and prenuptial agreements don’t find social acceptance. However, these are governed by the Indian Contract Act and have as much sanctity as any other contract, oral or written. The courts take cognizance of a prenuptial agreement if both the parties mutually agree to it and sign it voluntarily, without any undue influence, force or threat. Besides, the agreement should be fair, clearly stating the division of property, personal possessions and financial assets of the parties, and should be certified by a separate lawyer for each. Basically, Prenuptial Agreements aren’t popular India but they are valid and they are governed under the Indian contract act, 1872. They are legally binding if they’re mutually agreed upon by both the parties and the clauses in the agreement are fair and clearly stated without any ambiguity.
EUPHEMISM TO PRENUPTIAL AGREEMENT:
The Indian legal system does not yet recognize Prenuptial Agreements as legal agreements. At present in India, there is no categorical law governing Prenuptial Agreements. Although are four views about Prenuptial Agreements in India-
1. They are governed by the law of contracts and not matrimonial laws. They require the same condition as for any other contract under Section- 10 of the Indian Contracts Act, 1872.
2. The other view is that Prenuptial Agreements are against public policy and hence void under Section- 23 of the Indian Contract Act.
3. Some consider Prenuptial Agreements as only a memorandum of understanding and are not binding on the parties.
4. Prenuptial Agreements can be considered binding if the marriage is solemnized under the Special Marriage Act, provided it is submitted along with other documents to the registrar.
Amidst the debate of legal validity of Prenuptial Agreements, importance should be given to emotional feasibility offered by such agreements.
Prenuptial Agreements are seen as a sign of mistrust or lack of commitments among the people, but they help to solve financial and property issues.
NECESSITY OF PRENUPTIAL AGREEMENT:
Inescapably, prenuptial agreements are about money. They focus on property and support rights upon the legal or natural end of the marriage. The main purpose of getting into prenuptial agreements is to decide the fate of finances and personal liabilities in case the marriage fails and eventually couple gets divorced. Prenuptial agreements allow couples to write a “road map,” that structure their finances according to a mutually predetermined plan. In addition, prenuptial agreements enable an individual to protect a family business or specific piece of property from possible claims by a former spouse.
CONCLUSION:
As a society, we are witnessing a steep escalation in divorce rates in India. Things can get a lot worse if financial insecurities are added to your emotional trauma. Having a prenuptial agreement is a good idea as it would protect the interest of the parties and can also protect you from unforeseen circumstances and exorbitant divorce settlements.
A prenuptial agreement helps you to reduce uncertainty regarding the division of property after divorce. Courts in India will consider a prenuptial agreement valid only if both the parties have mutually agreed and signed it voluntarily without any force, undue influence or threat.
1. Most of the legislation in India is biased towards females, and the law does not pay much attention to the financial status of the male. Hence, having a prenuptial agreement ensures that rights of both the parties are taken care.
2. Prenuptial agreement can also be useful to check misadventures under Section- 498A of the Domestic Violence Act.
3. No law in the country determines the sum of alimony arithmetically. Alimony is usually decided as per the discretion of the court. The court, while deciding the maintenance, may consider factors like the income of the spouses, the standard of living, the conduct of applicant etc.
4. By having a prenuptial agreement, you can decide this amount beforehand and strive for an equal distribution which will be favorable to both the parties. It also ensures that the parties are relieved from carrying the burden of each other’s financial obligation post-breakdown.
Also, expensive advocate fees can be avoided.
However, a caveat must be employed, underscoring that the legislation of prenuptial agreements justifies greater state regulation, especially considering the potential that spouses adopting prenuptial agreements may lack sufficient understanding of the economic rights they are relinquishing. This could be remedied by legislation ensuring that premarital contracts conform to general principles of contract law.
