This Article has been written by Ms. Shamyana Parveen, a 5th Year B.A.LL.B. Student of Bikash Bharati Law College, Kolkata.

Abstract:

Getting married is a wonderful moment for people, and no one would like to cast aspersions on the intentions of a would-be partner by bringing up topics like future financial obligations at such time. However, it must be considered that future is unpredictable, and feelings about one’s partner might change with change in circumstances. Given that money and communication are typically two out of the top three reasons people get divorced, it is essential to foster healthy communications about finances between partners right from the beginning to prevent any disruptions in future. Prenuptial agreements are economically viable as they provide protection from costly legal disputes, involve the consent and conditions of both the parties, reduce the possibilities of fraud by keeping a check on misrepresentation by either spouse.

Introduction:

Prenuptial agreements are rising in favor among young couples who want to preserve their possessions and try to get the best settlement for both of them in the event of a divorce. While growing separation numbers are seen to be a significant cause motivating individuals to enter into prenuptial- agreements, the shifting perspective regarding marital relationships and the development of female independence may also be considered as contributing to the increasing acceptability and usage of prenuptial agreements. In India, the legislation regulating premarital agreements is still in its infancy, making it impossible for Indian couples to adopt this trend. Whereas the advantages of prenuptial agreements are numerous, the validity of prenuptial agreements continues to be an open question without a clear answer due to the inaction of legislators regarding the formulation of relevant laws or policies and the uncertainty of the judicial position on the issue towards the prenuptial agreements. In this article, we will try to deal with the issue of uncertainty surrounding premarital agreements in India and propose some sample terms of prenups that may be possible to be executed despite the variety of personal laws regulating marriage and divorce in the nation.

Prenuptial Agreement

A prenuptial agreement, antenuptial agreement, or premarital agreement, is a written contract entered into by a couple prior to marriage.

What Is A Prenuptial Agreement?

• A prenuptial agreement is a contract entered by the parties before getting married. It is a signed, registered and notarised document that usually outlines the distribution of assets, liabilities and issues relating to custody of children if the marriage falls apart in the future. Prenuptial agreements or marriage contracts are domestic agreements between spouses, prospective spouses or live-in partners. They set out the terms of how the parties want to deal with the issue that would arise during and possibly, at the end of the marriage/relationship.
• It is a formal written agreement duly signed and witnessed by both the parties listing the articles brought at the time of the marriage and the items given to the wife by the husband (and vice versa).
• The primary clauses of prenup cover issues like distribution of property acquired jointly or individually during the subsistence of the marriage, the custody of any children, the division of liabilities concerning taking care of the child, setting up an upper limit of alimony etc.

What Are The Essential Clauses Of Prenup?

• There is no fixed structure of a prenup, and it can be tailored as per the needs of the couple. The agreement should be fair and certified by a lawyer from each side. Since marriages are believed to be sacred, it is difficult to weigh them and put it in contractual terms.

• But here are some typical clauses in a prenup:

1. Separate Property
2. Shared Property
3. Alimony
4. Earning during the marriage
5. Custody of Children

Validity Of Prenuptial Agreement

• Prenuptial Agreement is a contract entered between the parties intending to get married laying down the possible settlement for future in case of death, divorce or separation. It not only deals with settlement of assets and liabilities but regarding the custody of the children as well.
• Hindu Marriage Act does not provide for legality of prenuptial agreement as it would be immoral as per the Hindu philosophy.
• Supreme Court has held that pre-nuptial agreements are against public policy and hence void. It has also been observed that any agreement which sought to override the rights provided under personal laws cannot be held to be valid.

Not valid, then why make it?

• Clear understanding between the intending couples for future
• Declaration of assets at the time of marriage is beneficial to save future litigation in case of divorce, cases of domestic violence, dowry harassment etc.
• Settlement of children custody in peaceful manner.
• Win-win situation for both the parties reducing the conflicts if any arises in the future saving time, money and energy.

Are Prenuptial Agreements Or Marriage Contracts Not Enforceable In India? If So, Why Do People Enter Them?

Prenuptial agreements or marriage contracts are not enforceable in any court in India. Such agreements have persuasive value only, that is, they show the intention of the parties entering into marriage regarding maintenance/alimony or division of assets at the time of entering a marriage. The court, while granting divorce and/or deciding maintenance or division of properties, may consider such a contract to guide its decision, but it is not bound by the terms of the contract. 

The Indian legal system does not yet recognise prenups as legal agreements. At present in India, there is no categorical law governing prenups.

They are five views about prenups in India-

1. In India, marriage is considered to be sacred not a contract. Hence, prenups are not valid in India.
2. They are governed by the law of contracts and not matrimonial laws. They require the same condition as for any other contract under Section- 10 of the Indian Contracts Act, 1872.
3. The other view is that prenups are against public policy and hence void under Section- 23 of the Indian Contract Act.
4. Some consider prenups as only a memorandum of understanding and are not binding on the parties.
5. Prenups can be considered binding if the marriage is solemnised under the Special Marriage Act, provided it is submitted along with other documents to the registrar.

Remedy:-

Section 24 in The Indian Contract Act, 1872

Agreements void, if considerations and objects unlawful in part. If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void

Section 26 Of Indian Contract Act

Agreement in restraint of marriage, void. -Every agreement in restraint of the marriage of any person, other than a minor, is void. -Every agreement in restraint of the marriage of any person, other than a minor, is void.

Section 28 of Indian Contract Act

Section 28 in The Indian Contract Act, 1872. (b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent

Doctrine of Severability

He doctrine of severability means that when some particular provision of a statute offends or is against a constitutional limitation, but that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute

Trends In Other Countries:

• With a steep rise in divorce rates, prenups (as they are commonly called as) are no longer considered unromantic or insulting notions.
• 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 United States believe that there is an increase in prenuptial agreements since 2017.

Uncommon In India:

• Prenups are extremely common abroad but are not warmly welcomed in India.
• Firstly, there is a lot of social stigma around divorce.
• Also, such contracts sound like a business deal, and couples feel uncomfortable entering into such agreements.
• Mostly, people think that such arrangements are only for rich people.
• But they are a lot more common than that. Having a prenup will save you from an unnecessary complex divorce battle.

Why Should You Opt For A Prenup?

It is essential to keep your emotions aside while drafting a prenup. Consider the following reasons to opt for a prenup-

1. Most of the legislation in India is biased towards females, and the law does not pay much attention to the financial status of the male. Hence, having a prenup ensures that rights of both the parties are taken care.
2. Prenups can also be useful to check misadventures under Section- 498A of the Domestic Violence Act.
3. No law in the country determines the sum of alimony arithmetically. Alimony is usually decided as per the discretion of the court. The court, while deciding the maintenance, may consider factors like the income of the spouses, the standard of living, the conduct of applicant etc.
4. By having a prenup, you can decide this amount beforehand and strive for an equal distribution which will be favourable to both the parties. It also ensures that the parties are relieved from carrying the burden of each other’s financial obligation post-breakdown.

In India:

• A survey in Mumbai revealed that roughly 10 per cent of marriages; mainly in the affluent socio-economic group are opting for pre-nuptial agreements.

• Just five years ago, a pre-nup was almost unheard of in India, it’s been quite a steep rise.

• One can attribute the change to the growing number of divorces in the country.

Special Marriage Act:

• The Prenuptials stand a very good chance of enforcement in India if the prenuptial is certified by the court easily and with open mind and this is possible in the “Special Marriage Act” wherein the magistrate goes through all the documents and then declares the marriage based on those.

• If the magistrate feels the some clauses are unfair then he can dismiss but once the magistrate has accepted the prenuptials then for demanding money or anything beyond prenuptials the onus is one other party to prove additional circumstances.

A Delhi court recently said that prenuptial agreements should be made mandatory before entering into marriage so that parties to the marriage need not face law induced mental cruelty. Family Court judge Harish Kumar of the Patiala House Courts made the observation while granting divorce on no-fault basis to a couple who had been involved in legal battles for the last seven years. “Time has come to make compulsory prenuptial agreement to be executed before appointed authority after counseling of the parties about the possible risk of marriage going haywire for variety of reasons.

Notably, the Court passed the order granting divorce without going into which party was at fault for the breakdown of marital relations.

“This Court, therefore without going into question as who is at fault so as to allow husband’s or wife’s prayer for dissolution of their marriage on fault theory, hereby dissolve their marriage under Section 13B of the Hindu Marriage Act, 1955 taking their respective prayer to dissolve their marriage (based on the faults of other) as their respective consent to dissolve their marriage. The Court noted that in recent times, matrimonial cases have seen a phenomenal increase and most of them do not involve real cruelty. If one of the parties decides to walk out of marriage for any reason, he or she would have no option but to approach the Court and make allegations against the other.

“[These allegations] snowball into counter allegation and Court of law is pressed into service to find out something which never existed because difference of opinion and disagreements are also reported as an act of cruelty.

Though both parties wanted a divorce, they could not agree to a divorce with mutual consent because they could not agree on various issues between them. Court considered the case and held that if there is matrimonial discord where the spouses have leveled grave allegations and there is no hope of them living together, it would be cruel not to dissolve the marriage.

“Spirit of the Family Court Act is also to bring out settlement between the parties, which means putting quietus to their dispute. In the present case if prayer of husband or wife is accepted holding the other spouse guilty of matrimonial offense, the person against whom findings would go will take the matter to higher forum thus drag the other into rigmarole of further round of litigation with added agony and harassment.

Conclusion:

In conclusion it is perhaps wiser to go in for a prenuptial agreement that clearly states on a fair division of property, personal possessions and financial assets than fight over one’s favourite piece of furniture and crystal ware, later in the marriage.

Reference:

1. This article was originally written by Manmeet Kaur, published on Mondaq website. The link for the same is herein. https://www.mondaq.com/india/family-law/1356564/pre-nuptial-agreements-validity-in-india#.
2. This article was originally written by Shipra Singh, published on Live Mint website. The link for the same is herein Prenuptial Agreements in India – Validity and Legality – LinkedIn https://www.linkedin.com/pulse/prenuptial-agreements-india-validity-legality-fortunelegal.
3. https://www.livemint.com/money/personal-finance/the-limitations-of-prenuptial-agreements-in-india-a-look-at-the-lack-of-legal-protection-for-assets-in-divorce/amp-11692637131914.html.
4. This article was originally written by Girijia Gadre, Arti Bhargava and Labdhi Mehta, published on The Economic Times website. The link for the same is herein. https://m.economictimes.com/analysis/are-prenuptial-agreements-valid-and-enforceable-in-india/articleshow/44782040.cms.
5. This article was originally written by Srishti B Dutta, published on the India Times website. The link for the same is herein. https://www.indiatimes.com/news/india/prenup-not-legally-enforceable-in-india-says-court-what-is-prenup-why-is-it-not-valid-in-india-617133.html.
6. http://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf.