As a society, India is witnessing a steep increase in divorce rates in India. Things can get a lot worse if financial insecurities are added to your emotional trauma. Having a prenup 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.
Prenuptial Agreements in India-
A prenuptial agreement or premarital agreement is an agreement or a contract that is signed by the couple who intends to get married or is soon ready to tie the knot or stay together in the form of a civil union. Also abbreviated as prenupt or prenup, this formally written agreement is a signed, registered, recognized and notarized contract/document that includes provisions pertaining to distribution or division of assets, liabilities and property post separation of couple or spousal support in case of child custody, maintenance or alimony. The document also comprises of terms and conditions for forfeiture of assets on the basis of adultery, conditions of guardianship post dissolution of marriage, etc. The contents of pre-nuptial agreement are subject to change and vary at any point of time. The concept of prenuptial agreements is popular in European Countries, Canada, Italy, France, Germany, Netherlands, Belgium, etc.
A prenuptial agreement can be enforced if it fulfills the following conditions:
- The agreement or contract should be clear, fair, voluntary, mutually signed and in writing.
- The agreement or contract must be signed and executed before marriage.
- The agreement or contract must not be developed in a way wherein either of the parties is forced, pressurized, coerced, beaten, etc.
- The agreement or contract should be certified and notarized.
- The agreement or contract should comprise of a particular clause which mentions that irrespective of any provision being an invalid one, yet the agreement will be valid and be in force.
- The agreement or contract should list all the assets, liabilities, financial possessions, etc owned by both husband and wife.
- The agreement or contract should not have any information that is invalid, false or fake.
- The agreement or contract should comprise of all the provisions.
Legal position on the enforceability of prenuptial agreements in India
Prenuptial agreements are not valid and legal in the eyes of Indian Law because as per marriage laws in India, a marriage is not considered as a contract. The institution of marriage is considered to be pious, sacred and a religious bond between two persons i.e. husband and wife who have decided to stay together till eternity. The Indian Contract Act, 1872 does not consider such agreements or contracts with respect to marriage or wherein marriage is taken into consideration.
Objective behind making a prenuptial agreement in India
The following are the objectives behind drafting a prenuptial agreement:
- The prenuptial agreement considers both husband and wife as equal. Hence, it prepares both the parties to furnish their financial assets, liabilities, possessions, etc… before getting married and further prevent them from getting into legal hassles that might occur in case of divorce, mutual separation, child custody, child maintenance, alimony, etc.
- Generally, most of the alimony laws support women spouses and forget to consider the financial situation of male spouse. As a result, the financial decisions tend to get biased and ultimately the male spouse suffers. However, in case of prenuptial agreements, the financial status of both the spouses is clear and hence there will be an equal flow of money post separation.
- Prenuptial agreements prevent male spouses from any sort of abuse caused by female spouse in lieu of seeking maintenance post separation.
- Prenuptial agreements encourage transparency and furnish the real financial positions of both the parties wherein there is no chance of any fraud.
Important provisions which a prenuptial agreement should contain
The following are the key provisions that must be stated by both the parties in the prenuptial agreement:
- Disclosure of assets and liabilities
- Financial or monetary state
- Ownership of property or real estate
- Estate planning
- Alimony, spousal support or maintenance and child custody & maintenance
- Financial state of business, partnership rights in business
- Monetary savings
- Life insurance, medical insurance, claims
- Credit card limits, debts, spending, payments
- Financial investments
- Management of bank accounts or joint accounts
- Management of household expenses, bills, etc
- Retirement benefits and accounts
- Division of property
- Gifts in the form of jewellery, engagement ring, precious bands, art, etc
Advantages of Prenuptial agreements in India
The following are the advantages of prenuptial agreement:
- Prenuptial agreements facilitate the process of seeking maintenance speedily and also prevent the parties from spending exorbitant fees of advocates.
- The agreement or contract protects both the parties from each other’s debts.
- Both the parties are financially secured even in situations where in either of the spouses passes away.
- The agreement or contract protects and secures the child’s future even if both the parties decide to go for divorce or mutual separation.
- Women tend to give up their careers after marriage and decide to focus only on raising their family well. But this agreement financially secures the future of women.
- Prenuptial agreement guaranteed custodial issues and remarriage rights.
- The agreement prevents the business from getting divided.
- The agreement ensures spousal support, maintenance and alimony.
- The agreements prevent couples from facing embarrassing situations in court proceedings and simplify the process of separation for both the parties.
- The prenuptial agreement reduces conflicts between both the parties.
Disadvantages of Prenuptial agreement in India
The following are the disadvantages of prenuptial agreement:
- Deciding to go for a prenuptial agreement is a difficult and complex step for both the parties.
- The agreement implies that the couples do not envision the marriage to last forever.
- The agreement can adversely impact life of both the parties post marriage.
- The agreement can enhance the importance of money than the thought of living together for both the parties.
- The agreement can adversely impact the lifestyle of both the parties.
Provisions in a prenuptial agreement that can be over ruled by the courts
The following are the provisions in a prenuptial agreement that can be rejected or over ruled by courts in India:
- Agreements that promote or encourage divorce/separation.
- Mention of spousal waivers
- Waivers of counsel fees, temporary alimony and permanent alimony
- Agreements that do not support child custody, child support and maintenance
- Regulation of conduct during marriage
- Agreements that mention religious upbringing of children
- Enforceability of no child provisions
- Limiting the grounds for divorce
- Agreement comprising of provisions requiring the spouses to marry
These agreements can be considered later as a reference or evidence and governed by Indian Contract Act if both husband and wife have mutually decided and agreed upon it and signed it voluntarily without any force, coercion, threat or influence. The document will be equally considered like any other contract that is in written or oral form. Moreover, the document should clearly state the provisions and must be certified at the same time.
#tags: PreNups, Contract, Agreement, Divorce in Indiax
February 03, 2021