Prenuptial Agreement In India

Law Family Law
25-Jun-2022
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A prenuptial agreement, or premarital Agreement, usually abbreviated to prenup or prenups, is a contract entered into by parties to a marriage before the actual marriage takes place. The content of a prenuptial agreement commonly includes provisions for the division of property and exceptions in the event of the divorce of partners. 

Prenuptial agreements are a European tradition that is gaining traction in many other parts of the world. Countries like Canada (Quebec), France, Italy, and Germany recognize these agreements. In India, however, the concept had resurfaced time and again and gained attraction. The Indian judiciary has acknowledged the concept time and again in different judgments. The concept also gained popularity when Maneka Gandhi recommended the Minister of Law and Justice to establish prenups as mandatory before marriage. However, the legality of prenup agreements in India is uncertain.

What Are Prenups Or Prenups Agreements?

A prenuptial agreement is an agreement between two married people highlighting the financial status and the individual responsibilities in the event of separation of the partners. As stated above, the instrument is not popular in India, however, the formation of a prenup agreement before marriage could result in avoiding financial disagreement, property share, child custody, Divorce alimony, insurance claim, and trauma at the time of separation. The prenup premise is dependent on various concepts, including contract law, economics, family law, women's law, and public interests.

It is essential to understand that even though the prenuptial Agreement is dependent on various laws, it does not have a particular format. Due to the absence of any format, the whole concept is complicated in our country. However, the below conditions are a few prerequisites for a prenuptial agreement:

  1. The Agreement should be fair and acknowledged. 
  2. The Agreement should have attorney certification from both parties.
  3.  The Agreement should have a severability. 
  4. The Agreement should contain the list of each spouse's assets and liabilities.  
  5. The Agreement should have all the contractual clauses between the prospective spouses.  
  6. The Agreement may also include the history of the proposed alliance.  
  7. Ideally, the Agreement should detail each party's assets, debts, and property rights before the marriage, settling property division issues and spousal support in the event of a divorce.

Legality Of Prenuptial Agreements In India

While the instrument is common in western countries, they are still not welcomed in the Indian culture. In India, marriages have been given a sacred status; hence, it has become difficult for Indian society to weigh them in contractual terms. Prenuptial agreements are neither legal nor valid under the marriage laws in India because marriage is not considered a contract. However, this instrument is governed by the Indian Contract Act, just like any other oral or written contract.

The Indian courts take cognizance of a prenuptial agreement if both the parties mutually agree to it voluntarily, without any undue influence, pressure or threat. Further, if the Agreement clearly states the division of the parties' property, liabilities, and financial assets.

Conclusion

A prenuptial agreement creates a sense of freedom for both the partners of marriage regarding the inclusion of the terms and conditions which are suitable to them and agreed upon mutually. It is a way of decreasing the chances of misrepresentation or fraud by either party and hence aims for a more amicable settlement. It basically is the most economical solution when it comes to litigation costs.

However, the Indian society still poses a significant barrier, as fearing that marriage would fail before entering is regarded as taboo. As a result, a prenuptial agreement is considered to be against public policy. However, the regulatory framework around the concept is quite ambiguous, so it is recommended to consult an expert to stay away from any suit. Find lawyers with domain expertise at Rest The Case.


Author Bio: Adv Amrita A J Pinto / Saldanha is a distinguished advocate specializing in Civil law, which includes Family Law (Divorce and custody), Specific Performance of Contracts, Wills, Probates/ Succession and planning of estates, and Corporate and property due-diligence (including stamp duty, title search POAs, and registration of Agreements). With over 20 years of legal experience, Adv Amrita has in-depth knowledge of clearing titles for properties, the performance of Contracts, and general property dealing / transactions and also possesses expertise related to the recovery of possession of Property and general recovery of loans for properties under the mortgage. She has also spent a significant amount of time practicing at different tribunals like NCLT, DRT, Consumer Forums and Commissions, etc. For the past few years, Adv. Amrita has also been serving as a women's rights activist as well and her legal expertise and unwavering dedication to the clients have earned her widespread respect and admiration in the legal community and several non-profit organizations.