All you need to know about Prenuptial Agreements

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Introduction

Prenuptial agreements or prenups are still a relatively new concept for Indians, and they might not ring a bell to any Indian because they have evolved from Western countries. So, what exactly does that imply?

A prenup, also known as a premarital agreement, is a contract signed by two parties who intend to marry or constitute a civil union. This agreement outlines the couple’s individual property holdings as well as their ownership status if their marriage is consummated. The agreement also contains terms and conditions for wealth forfeiture due to adultery, as well as terms and conditions for guardianship following a divorce.

Prerequisites and Clauses

The format of these agreements is dynamic and can alter from contract to contract depending on the parties’ demands. However, several prerequisites and requirements must be met for the agreement to be fair and reasonable. Those conditions are[1]

  • The agreement or contract must be written and completed with both parties’ permission prior to marriage.
  • The agreement or contract should be explicit, fair, voluntary, jointly signed and in writing, and devoid of coercion, undue influence, fraud, misrepresentation, and other such things.
  • The contract or agreement should be notarized and verified or certified.
  • There should be no information in the agreement or contract that is inaccurate, fraudulent, or phoney, and it should be thoroughly reviewed by the attorneys of both parties.
  • The agreement or contract should include a phrase that states that even if any section is found to be invalid, the agreement will remain legal and in effect.
  • Before the marriage, the Agreement should lay out each party’s assets, obligations, and property rights, as well as resolving questions of property distribution and spousal support in the case of marriage failure.

It is critical for the parties to include a few necessary terms and provisions in their agreement after satisfying the aforementioned standards and keeping all of those factors in mind.

  • Assets and liabilities must be disclosed, as well as the state of one’s finances or money.
  • Property or real estate holdings, as well as estate planning
  • Child custody and maintenance, along with alimony and spousal support or maintenance.
  • The financial status of a firm, partnership rights in a business, and all monetary savings are all factors to consider.
  • Life insurance, medical insurance, claims, credit card limitations, debts, expenditure, obligations, and so on are all things to consider.
  • Management of bank accounts or shared accounts, and other financial investments.
  • Jewellery, engagement rings, valuable bands, art, and other types of gifts.
Legal Enforceability in India

As previously said, these agreements are still seen as a foreign concept in India. In contrast to western nations, where weddings are only a contract, marriages in India are a sacred covenant between two individuals. As a result of the sacred nature of the union, such agreements announcing its termination are not legal in India. The Hindu Marriage Act of India declares them void. Personal laws regulate divorces in India, such as the Hindu Marriage Act[2] and the Indian Christian Act[3]. Maintenance is provided for in all marital laws, generally, only the woman can claim maintenance in matrimonial laws, except under the Hindu Marriage Act, where any spouse can claim maintenance. In most cases, alimony is awarded based on the parties’ income, assets, and behaviour. While it may not always be feasible to avoid divorce, a prenuptial agreement ensures that one does not receive the short end of the stick when it comes to financial concerns.

Prenuptial agreements in India, do not currently have legal standing or are authorized by legislation. They are treated like any other regular agreement that is not legally enforceable. Because of the Portuguese Civil Code[4]Goa is the only State in our nation that makes these agreements binding. Despite their inability to be enforced, they can be rendered legally binding by adhering to the Special Marriage Statute of 1954[5] and ensuring that all essential paperwork (as defined by the Act) for declaring marriage is recorded at the Registrar’s office. The Court has the discretion in these sorts of agreements to execute and permit its terms or clauses completely or partially for the benefit of the spouse or their children.

Conclusion

Every agreement has advantages and disadvantages, and a prenuptial agreement is no exception. The most significant benefit of having a prenuptial agreement is that it not only segregates the possessions and liabilities of the spouse, but also protects the rights of their children upon their divorce. It also saves the spouse’s time and exorbitant money spent fighting a legal battle because they are not forced to go to court as a result of this arrangement. Consequently, similar agreements might be considered to have drawbacks. These agreements are far more complicated than any other since they lack legal backing, primarily in India. The agreement suggests that the couple does not anticipate their marriage to survive forever and that money is more valuable than their emotional bond.

These agreements, like a coin, have two sides that may be seen from different viewpoints depending on the requirements of the persons contracting. Prenuptial agreements, which are still taboo in India, are yet to gain popularity.  Rather than considering it as a reminder of a failed marriage, it could be viewed as a method to reclaim your dignity and property after a divorce. Divorce is fairly prevalent these days, and prenuptial agreements make the judicial process easier and shield you from any psychological and financial ordeal.

References

https://www.nolo.com/legal-encyclopedia/prenuptial-agreements-overview-29569.html

https://www.latestlaws.com/articles/what-are-pre-nuptial-agreements-and-are-they-valid-under-indian-marriage-laws/

http://family.findlaw.com/marriage/pros-and-cons-premarital-agreements-prenuptials.html

https://timesofindia.indiatimes.com/life-style/relationships/love-sex/Happily-married-but-conditions-apply/articleshow/12230194.cms


[1]Pre-nuptial agreements Legalserviceindia.com,

http://www.legalserviceindia.com/article/l284-Pre-nuptialagreements.html

[2]The Hindu Marriage Act, 1955

[3]The Indian Christian Marriage Act, 1872

[4]Portuguese civil code,1867

[5]Special Marriage Act, 1954

This article is authored by Shriya Jain Student at Vivekananda institute of professional studies.

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The views and opinions expressed in this article are those of the author and do not reflect the views or opinions of Legally Flawless or its members.
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FAQ

Most frequent questions and answers

A premarital agreement is a contract signed by two parties who intend to marry or constitute a civil union. This agreement outlines the couple’s individual property holdings as well as their ownership status if their marriage is consummated. It contains the terms and conditions for wealth forfeiture due to adultery, as well as terms and conditions for guardianship following a divorce.

The prenuptial agreements are not valid in India since the law does not contain the marriage as a contract. Due to the enforceability of the Portuguese Civil Code in Goa, it is the only State in our nation that makes these agreements binding. The Court may however exercise its discretion to execute and permit its terms or clauses completely or partially for the benefit of the spouse or their children.

No, the prenuptial agreement cannot be used as a measure to restrict the child from accessing the rights provided under the law.

No, the prenuptial agreement is meant to protect the husband and the wife from the long legal battle, they might have to fight, and it is not a testimony to the love or trust the spouses have for each other.

The prenuptial agreement is valid for lifetime unless and until the coupes get a clause related to the time period of the agreement.

It helps in avoiding the legal battle and helps the spouse in determining the distribution of property in the case of divorce. It can be viewed as a method to reclaim your dignity and property after a divorce. 

Some people view the prenuptial agreements as a lack of trust and mutual affection. It is also a misconception that entering into a prenuptial agreement means that the marriage is destined to fail.

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