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The Prenuptial Agreement, Its Nature, Concept, Pros & Cons And Validity In India



Introduction

We often heard about the term “Prenuptial Agreement”, a concept that many people dislike due to its unromantic nature of the contracts that anticipated a divorce. In this modern world, still this concept is very new and modern in nature and some countries till date find it difficult to adopt such a concept with legal force.

Prenuptial Agreement (Meaning)

A prenuptial agreement is a contract or an official document signed in between two individuals (couple) prior to marriage that enables them to select and control many of the legal rights and also the state of finances and the personal liabilities in case of marriage fails. It includes division of property, right to seek alimony etc.

Prenuptial agreement talks about the wife’s compensation in case where the couple decides to part ways.

The main purpose of this agreement is to avoid financial disputes and trauma at the time of separation.

These agreements are more prevalent in developed countries like the United States, Australia etc.

In countries like the United States, Belgium and Netherlands, the prenuptial agreements not only provides for what happens in the event of death or divorce, but also protects some property during the marriage.


History of Prenuptial Agreements

The concept of prenuptial agreement originates from ancient Egypt. Moreover, one of the earliest known prenups is over 2000 years old. Back then, prenuptial agreements were not even documents drafted by lawyers representing the rights of each spouse. In those days, these agreements were basically written or verbal contracts stating the properties that each spouse would bring to the marriage.


The first record of the word prenuptial comes from the mid 1800s, with the term prenuptial agreements first appearing in records from the late 1800s.

In the year 1848, the New York State passed the Married Women Property Act, in order to ensure the prenups and ensuring that the married women would inherit their husband's property or estate.


Pros and Cons of Prenuptial Agreement

Like every coin has two sides, in that way the prenuptial agreements has its pros and cons :-

Pros :

  • Prenuptial agreements help to provide protection. It is a wise and good decision for the ones whose assets are worth protecting or who want to ensure that they are not going to lose anything as a result of a divorce. Whether any of the partners need to be protected, the prenuptial agreement provides that.

  • A prenuptial agreement can protect children. Children from previous marriages could lose out on assets if there is dissolution of marriage. These agreements try to protect the rights of the children. Children can be included in the prenuptial agreement to ensure that they get assets if anything happens to their parents.

  • In case of business assets, the prenuptial can protect the business assets along with personal assets.

  • Prenuptial agreements are more than just divorce, most people associate these agreements with divorce but it can also include information about if one spouse dies. The prenuptial agreements can include information about how to divide assets and what will be the remaining that the spouse will be entitled to in case when the other dies.


Cons :

  • Prenuptial agreements create a certain level of distrust in the relationship. The distrust that is created because of the prenup can cause a rift in the marriage and sometimes, as a result, it leads to divorce.

  • Getting married is a very joyful and romantic occasion for most people as two people are getting united under one roof. Prenuptial agreements are unromantic contracts and many people dislike this concept and not something that people want to do when they are planning their dream wedding.

  • Poorly drafted agreements can not be considered as prenuptial agreements. If the agreement was not prepared by professionals, it may be lacking several pieces of information and verbiage to hold up in the court of law. It is important to be upfront about all the assets and make sure that the document is professionally prepared.

  • When the couple wants to go into a marriage, nobody wants to think what happens if the marriage fails but the fact is that divorce is extremely common and due to this pandemic, divorce cases increased a lot. It is important for couples to consider the possibility and be prepared for it even if it is something they don't want to think about before getting married.


Validity of Prenuptial Agreement In India


Prenuptial Agreements is an agreement that talks about the wife’s compensation in case of separation or divorce.This concept is not popular in India.


In India, prenuptial agreements are neither legal, nor valid under marriage laws. Such agreements are not legally tenable as the law doesn't consider marriage as a contract. The Supreme Court of India, which is the apex court, in its rules, says that any contract which has marriage as an object is null and void.


India, a country which is famous for its customs and traditions, considered and treated marriage as a religious bond between husband and wife and prenuptial agreement don’t find social acceptance.


Due to this, prenuptial agreements are very rare and do not have any governing body.

However, Goa is the only indian state where a prenuptial agreement is legally enforceable as it follows the Portuguese Civil Code, 1867. A prenuptial agreement may be signed between two parties at the time of marriage, stating the regime of ownership and if the agreement has not been signed, then the marital property will be divided equally between the husband and wife.


Around five years back, Manka Gandhi, who was then the minister for Women And Child Development, recommended D.V. Sadananda Gowda, the minister of Law And Justice, to make prenuptial agreement mandatory before marriage. She recommends this concept as its benefits to many women in India coming from low socio - economic backgrounds who fight endless battles over alimony, marital ownership of property and assets during divorce.


As prenuptial agreements are not legally tenable in India, though some business families still draw one in order to offer clarity to the wife on what she will be getting in case of divorce. Business families do this to retain control over the business . A prenuptial agreement can be beneficial if a divorce turns into a court battle and can avoid couples taking advantage of each other.


The Indian courts take cognisance of a prenuptial agreement if both the parties mutually agree and sign it voluntarily without any undue influence, force or threat. Moreover, the agreement should be fair, clearly stating the division of property, financial assets and personal possessions of the parties should be made and certified by a separate lawyer for each party.



Conclusion


As marriage is considered as a religious bond in India, prenuptial agreements are very rare. However, with the rising divorce rates, people are showing interest in these agreements. Some lawyers are of the opinion that prenups don't have legal sanity in India. However, some forms of contracts are signed in some cases, usually among affluent citizens but such agreements should be reasonable and not violate any terms of any pre - existing laws like the Hindu Marriage Act.

The Indian courts allow a memorandum of settlement to be signed during divorce but no courts till date yet being asked to enforce prenup.


These agreements come under the Indian Contract Act, 1872, Section 10 of the Indian Contract Act states that the agreements are to be considered as contracts if they are made with free consent of the parties involved in the agreement. However Section 23 of the same act states that the contacts may be void in case if they are immoral or against public policy.



Reference :



- Ritika Chowdhury

Fifth Year Student

George School of Law, Hooghly, West Bengal


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