Written by: Runjhun Sharma
Prenuptial Agreement which is commonly known as “pre-nup” is an agreement that is consented by both the parties before marriage to decide the share of money or properties of both the parties in case they get separated.
Despite being not so common in India, Prenup has its own benefits too. In the cases of divorce and separation, a Prenup saves both the parties from struggling with dates of hearing in the courts, facing those annoying acquisitions, blaming each other, or getting less payment as alimony or paying more as alimony. In such a scenario, the Prenup is not only a time saver but easier to perform. We have to be ready for the beat anyway.
What is the Need?
- A Prenup agreement eases the process of maintenance and legal separation and makes it speedy. Also, it helps parties to not pay exorbitant fees to the lawyers.
- A Prenup contract reduces the chances of any conflict between the parties, which leads to a better understanding between them.
- A Prenup contract guarantees maintenance, alimony and the actual spousal support needed.
- A Prenup agreement is most helpful in preventing the messy situation in court proceedings at the time of a divorce or a legal separation.
- It ends the motive to gain financial stability from the spouse.
Prenup agreement is proved to be beneficial for both the parties as it saves time of both man and woman and pre-decides the outcome of a broken marriage and doesn’t lead to disputes. Most of the disputes pending in the divorce cases are regarding the maintenance and share of property. Therefore, by making a Prenuptial Agreement before entering into marriage would save the parties from legal disputes and would also save the crucial time of the Hon’ble courts.
Is Prenuptial Agreement Allowed in India?
As of now, there isn’t any expressed validity of Prenuptial Agreement in India and it is considered to be an ordinary agreement but with the consent of both the parties the Agreement can be allowed by the court. In India, marriage is taken into consideration as a holy alliance of two persons for existence and for this reason, a prenuptial settlement is legally invalid under the Hindu Marriage Act, 1955.
While India does not have a specific statute governing pre-nuptial agreements, even then if such pre-nuptial agreement were to be considered in India, it would fall under the ambit of Indian Contract Act, 1872. As under Section 10 of the Act, 1872, states that agreements are to be considered contracts if they are made by the free consent of the parties.
What are the Clauses of Prenuptial Agreement?
- It is between two spouses.
- It should not be unreasonable
- It is essentially a settlement in writing between the two spouses.
- It can only be executed on death or divorce or separation.
- Maintenance or the alimony between the parties, if the marriage gets dissolved.
- The custody and maintenance of the child/children.
- Financial and the monetary position of both the parties.
Situations Where a Prenuptial Agreement Can Be Rejected by The Court?
- In case a woman gives up her legal rights in the agreement, the court would strike off such an agreement. This is because an agreement in which a party gives up their right to legal remedies is void.
- If the agreement says that after separation the child would be in custody of only one parent and would not be allowed to meet the other, it would not be entertained in the court on the grounds of violation of public policy.
- If a fortune 500 business tycoon’s marriage breaks down within a few months, each party would not walk away with 50% of the total estate.
- If the clause(s) of the prenuptial agreement are unreasonable or unfair to one of the parties.
Cons of Prenuptial Agreement
There are pros and cons in everything. And some of the cons of a prenup agreement are:
- As the Hindu Marriages are considered to be a sacramental bond but with the validation of prenuptial agreements the Hindu Marriages would turn into a Contract.
- Prenuptial agreement is also termed to be a Taboo in India as it is interpreted that the marriage will get distorted at some point of time in future so an agreement should be formed prior to the marriage.
- A prenup agreement can intensify the importance of money between the couple, instead of strengthening marriage and understanding.
- A prenuptial agreement might seem all logical and rosy prior to the marriage but when the marriage comes to an end it can turn out to be unfavourable for any/both of the parties to the marriage.
- When the marriage is to be dissolved, if either of the parties deny the authenticity of the prenuptial agreement then that agreement would immediately become void.
In India, prenuptial agreements, commonly known as prenups, are not specifically recognized under the law. However, the Indian Contract Act of 1872 recognizes the concept of agreements that are entered into by two parties prior to their marriage.
A prenuptial agreement is a contract between two people who are planning to get married, which outlines how their assets and liabilities will be divided in the event of divorce or separation. The agreement can also include provisions related to spousal support, property division, and other matters.
Although prenuptial agreements are not specifically recognized in India, couples may still enter into a prenup as a form of legal contract. The prenup should be drafted and executed in accordance with the provisions of the Indian Contract Act.
It is important to note that prenuptial agreements may not be enforceable in Indian courts in all cases. Courts may consider the validity of the agreement and whether it was entered into freely and with full knowledge and understanding of the terms by both parties.
Therefore, it is important to seek legal advice from a qualified lawyer who has experience with prenuptial agreements in India. A lawyer can help draft a prenup that is in compliance with Indian law and advise you on the potential enforceability of the agreement in case of a dispute.
If the Prenuptial Agreement is given a logical thought, it can be proved extremely beneficial for society at large as the Agreement saves time of both the parties as well as of the court.
But on the other hand it would defeat the purpose and basis of the Hindu marriages which is considered to be a sacrament and is built on the terms of trust and bonding between two individuals.
Therefore, the debate on Prenuptial Agreement still remains unresolved as on one hand we can choose to be logical and accept westernization and on the other hand we can choose to take dissolution of marriages to the court and cause a havoc in the marital lives of both the parties.
How to find the Best Lawyer in India for making Prenuptial Agreement?
If you are looking for the Best Lawyer in India for making Prenuptial Agreement, important factor to consider is the lawyer’s experience. Some of the best lawyer(s) may have worked on more complex cases than others, which could lead to better results. Additionally, review their online reviews to see if anyone has had negative experiences with them. The Best Lawyer(s) in India will be well versed with and would be aware about the validity and use of Prenuptial Agreement. You can also contact Century Law Firm now.
Frequently Asked Questions (FAQs) on Prenup Agreements in India
- What is a prenuptial agreement? A prenuptial agreement is a legal contract entered into by two people prior to their marriage, which outlines how their assets and liabilities will be divided in the event of divorce or separation.
- Are prenuptial agreements recognized under Indian law? While prenuptial agreements are not specifically recognized under Indian law, the Indian Contract Act of 1872 recognizes the concept of agreements that are entered into by two parties prior to their marriage.
- What are the benefits of a prenuptial agreement? A prenuptial agreement can provide both parties with a clear understanding of how their assets and liabilities will be divided in case of separation or divorce, which can help prevent future disputes and legal battles.
- What can be included in a prenuptial agreement? A prenuptial agreement can include provisions related to the division of assets and liabilities, spousal support, property division, and other matters related to the financial aspects of the marriage.
- Are prenuptial agreements enforceable in Indian courts? The enforceability of prenuptial agreements in Indian courts is not guaranteed, as courts may consider the validity of the agreement and whether it was entered into freely and with full knowledge and understanding of the terms by both parties.
- Can a prenuptial agreement be challenged in court? Yes, a prenuptial agreement can be challenged in court if either party believes that the agreement was not entered into freely or if there are other issues related to the validity of the agreement.
- Do I need a lawyer to draft a prenuptial agreement? While it is not required to have a lawyer draft a prenuptial agreement, it is highly recommended. A qualified lawyer with experience in prenuptial agreements can help ensure that the agreement is legally sound and can provide advice on the enforceability of the agreement in case of a dispute.
- Can a prenuptial agreement be amended or revoked? Yes, a prenuptial agreement can be amended or revoked by mutual agreement between the parties. However, any changes to the agreement must be made in writing and signed by both parties.