PRENUPTIAL AGREEMENTS IN INDIA

Marriages may be made in heaven but they are dissolved in courts. Marriage is something that binds two people in a bond of love, care, affection, and respect. It is considered as one of the holiest bonds on earth since time immemorial. However, there is a sharp rise in the number of divorce cases. In India, such dissolution is usually messy and involves tedious and often expensive legal battles.

As people are getting educated, independent, aware, and financially sound, they have started looking for solutions that can help protect their interest when the marriage ends. The most favored solution is that of prenuptial agreements.

WHAT IS A PRENUP?

A prenuptial agreement is a contract between two individuals who are about to get married, outlining the state of finances and personal liabilities in case the marriage fails. It is a signed, registered, and notarised document. Prenups are extremely common abroad but are not warmly welcomed in India.

In Australia alone, 60% of the people are happy to sign the legally binding contract before they say I do. 63% of divorce lawyers of the United Nations say there has been an increase in prenuptial agreements since 2017.

POSITION OF PRENUPS IN INDIA-

In India, prenuptial agreements are neither legal nor valid under the marriage laws because they do not consider marriage as a contract. As marriage is treated as a religious bond between husband and wife, the prenuptial agreements don't find any social acceptance. However, these are governed by the Indian Contract Act and have as much sanctity as any other contract, oral or written.

The Indian courts recognize a prenuptial agreement if both the parties mutually agree to it and sign it voluntarily without any undue influence, force, or threat.

Prenuptial contracts are considered an agreement in contravention of the law and there are a plethora of judgments which say agreement in contravention of law will not be enforceable.

ESSENTIAL CLAUSES OF PRENUP-

There is no fixed proforma for a prenup, it can be tailored as per the needs of the couple. The agreement should be fair and certified by lawyers from both sides. Certain things should be written in prenups-

1. No dowry has been given or taken- You can make the girl write that no dowry has been given by me or my parents to the boy or the boy's parents.

2. Jewelry- You can also give a declaration as to the amount of jewelry you brought in and the amount of jewelry that was bought in by the girl.

3. Appliances and furniture- Similar rules apply to the appliances and furniture and consumed goods that were brought in through the marriage.

4. Employment of the girl- This can be helpful in maintenance. So at the time of marriage, you can have it in writing that the girl wants to work after marriage or she agrees that she does not wish to work anymore after the marriage.

5. Alimony- The prenup shall state the amount of alimony that will be given to one spouse by another after considering all the facts.

6. Severability clause- The agreement should have a severability clause that is if one of the clauses of agreement of invalidated the rest of the agreement still survives.

7. All other conditions to be written down in the agreement

8. Sunset clause can also be added, which states the expiry of the prenup.

Certain clauses can be nullified by a court also which includes clauses like encouraging dissolution of marriage, enforcing no child policy, specifying certain religion for the upbringing of children, waiver to spousal support or maintenance is very important to be kept in mind if you want a hassle-free agreement. So be aware of how your contract is drafted.

Sections 23 and 26 of the Indian Contract Act of 1872 acts as an obstruction in the way of implementation of prenuptial agreements as they treat these type of agreements void. Section 23 is what consideration and objects are lawful and what not. Section 26 talks about Agreements in restraint of marriage.

VIEWS REGARDING PRENUPS-

One view about prenups is that it is considered against the public policy and hence is void under Section 23 of the Indian Contract Act. Another view is that they are governed by the law of contracts and not matrimonial laws. Hence, they require the same condition as for any other contract under Section 10 of the Indian Contract Act, which provides for “What agreements are contracts”.

WHY IS A PRENUP NECESSARY?

Prenups have become like the necessity of today’s marriages as there has been a steep escalation in divorce rates in India in recent times. Things can get worse if financial insecurities are added to your emotional trauma. Having a prenup will protect the interest of the parties and can protect from all the unforeseen circumstances and exorbitant divorce settlements.

ADVANTAGES OF A PRENUP-

If a couple chooses to part ways and apply for legal separation, their rights and responsibilities are predefined. This would save time, expenditure, and energy of warring couples. Also, a big advantage of entering into such an agreement is that neither the husband nor the wife can contest a demand for dissolution of marriage and apply for mutual divorce.

Prenups can protect from most of the legislation that is actually biased towards women and also the misadventures under the Section 498A of Domestic Violence Act. You can also decide the amount of alimony beforehand and strive for equal distribution rather than going to the courts and letting them decide on how to divide your assets.

PRENUPTIAL AGREEMENTS IN MUSLIM MARRIAGES-

It is a well-established fact that marriage is a civil contract for Muslims. It is worth mentioning that there was a news article that said that the Karnataka State Women's varsity Vice-Chancellor, Dr. Syeda Akhtar has called upon Muslim girls to sign prenuptial agreements. Dr. Akhtar said this is the crucial first step that will guarantee a Muslim Woman's rights throughout her marriage. So, a prenuptial agreement can be an important document to enable a woman to assert her rights and ensure that she is not done out of her just dues.

CONCLUSION-

Prenuptial Agreements in India sounds like an alien concept. Since in India marriage is not considered as a contract, it is rarely seen. But prenups are the way forward to a better married hassle-free legal future. Divorce proceedings take an average of around 6 years to conclude, in such scenario prenups can play a crucial role. The Hon’ble Supreme Court of India has been quite active in matters concerning grounds of divorce but has taken no stand on the matter of prenuptial agreements. It is high time to provide a space for prenups in the legislature as they have become the need of time agreements now.

This article is purely for educational purposes and shall not be misconstrued as a piece of professional advice. If done so the people at The Legal Cartel along with the author shall not be responsible for any loss or harm incurred whatsoever.

About the author:

The author is an advocate practicing before the Hon'ble High Court of Madhya Pradesh Bench at Indore and the Lower Courts below. For further clarification, kindly consult the author.