This article has been written by Kirti Patil who is preparing for judiciary examination

Introduction:

Prenuptial agreements, commonly known as prenups, are legal documents designed to establish the financial rights and responsibilities of a couple in the event of a divorce or the death of one of the spouses. While some may view prenuptial agreements as unromantic or pessimistic, they serve a crucial purpose in providing clarity and protection for both parties involved. This article aims to shed light on the concept of prenuptial agreements, exploring their significance, key components, and the considerations couples should keep in mind when contemplating such arrangements.

Defining Prenuptial Agreements:

A prenuptial agreement is a legal contract that a couple signs before to being married or forming a civil partnership. The principal aim of this document is to delineate the allocation of their assets, liabilities, and other fiscal affairs in the event of a separation, divorce, or the demise of one partner. Prenuptial agreements are legally binding contracts that can cover a range of financial topics, including as inheritance rights, spousal support, and property partition.

A Legal Examination Of The Prenuptial Agreement:

In India, prenuptial agreements seem like a foreign idea. India takes great pride in the love and warmth that its citizens share as well as its rich cultural heritage. European countries view marriage as a contract between a husband and wife, while in India, marriage is regarded as a sacrament, hence the introduction of prenuptial agreements is a foreign concept. In contrast, European countries accept and acknowledge the concept of prenuptial agreements. Prenuptial agreements are “too early” and a “urban concept,” according to the administration, which rules out any quick changes to the law to recognize them.

How Prenuptial Work: 

Prenuptial agreements are subject to state laws, although according to the American Bar Association, “all require that such agreements be procedurally and substantively ‘fair.'” Understanding fundamental concepts of contract law, such as capacity, duress, fraud, and undue influence, is necessary to assess if an agreement is fair.”Prenuptial agreements are sometimes drafted by richer spouses in order to safeguard their possessions, however there are other reasons as well. Elderly couples may also need such an arrangement if they have assets or retirement income to safeguard and maintain, as well as if they wish to make sure that offspring from previous marriages receive a portion of their estate. Couples may disagree about prenuptial agreements, particularly if one partner is significantly wealthier than the other. A certain proportion of prenuptial agreements end up in court upon divorce. The question of whether the agreement was reasonable and uncoerced will be put to a judge.

 Prenuptial agreements sprung on a spouse on or close to the wedding day are typically frowned upon by the courts. In a prenuptial agreement, each partner’s individual assets are listed, along with information about which assets belong to which spouse in the event of a divorce, guidelines for dividing assets acquired during the marriage, information about who is responsible for paying debts incurred both before and during the marriage, and an outline of spousal support, such as alimony, in the event of a divorce.

It’s unclear if a prenuptial agreement speeds up or eases the divorce process. A protracted and expensive legal battle may begin if one spouse requests that the prenup be declared void by the court. Conversely, an uncontested prenuptial implies fewer discovery on matters specified in the agreement and, hence, less animosity overall. This implies that there will be less work for the court and the lawyers.

Current Position Of English Law: 

Because prenuptial agreements cannot supersede judicial discretion over the division of assets and post-divorce financial provision, they are currently not fully recognized by English law. Wall J acknowledged in S v. S that prenuptial agreements are not fully recognized by English law, but he also acknowledged that prenuptial agreements will be taken into consideration based on the case’s facts and all the conditions outlined in Section 25 of the Matrimonial Causes Act of 1973. Stated differently, prenuptial agreements are relevant factors to take into account when dividing assets and allocating funds, but they “will not be the sole consideration.”

A well-crafted prenuptial agreement “should be available as an alternative to the stress, anxieties, and expense of a submission [for ancillary relief] to the width of judicial discretion,” according to LJ Thorpe’s recent ruling in Radmacher v. Granatino, subject to certain safeguards. The viewpoint expressed by Resolution, a group of family law solicitors, is supported by LJ Thorpe. Resolution stated in their report that “pre-marital agreements should become legally binding and enforceable subject to a single overriding safeguard of significant injustice.”

This paper aims to critically assess the arguments supporting and refuting the idea that “full legal recognition of pre-nuptial agreements would resolve much of the uncertainty and injustice surrounding financial provision and property distribution post-divorce.”

Please accept this submission: prenuptial agreements are likely to alleviate some of the injustices and uncertainties that arise after a divorce. However, this paper is hesitant to embrace prenuptial agreements universally, preferring to take a cautious approach subject to certain safeguards. Additionally, this paper makes the argument that while prenuptial agreements may initially lower the costs of litigation, thereby reducing some perceived uncertainty, they may also spark additional litigation over the terms of the initial agreement, increasing uncertainty and potentially causing injustice for litigants.

Necessity Of Prenuptail Agreement:

Prenuptial agreements invariably involve money. They emphasize property and support rights in the event that a marriage dissolves voluntarily or legally. Prenuptial agreements are primarily used to determine what would happen to assets and personal debts in the event that a couple’s marriage ends in divorce. Prenuptial agreements give couples the opportunity to create a financial “road map” that organizes their assets in accordance with a decided-upon strategy. Prenuptial agreements also give someone the ability to shield a particular asset or family company from future claims by a former spouse.

Enforceability of prenuptial agreements in India:

In India, there is no particular legislation that addresses the validity or enforceability of prenuptial agreements. In India, prenuptial agreements are not legally binding. 

This does not, however, assess the significance of prenuptial agreements in general. The prenuptial agreement may be taken into account by the court in order to determine the couple’s intentions. In divorce situations, a prenuptial agreement has assisted the court in arriving at an appropriate settlement.

A collection of rulings in which the court relied on prenuptial agreements to reach a just result: 

• Sunita Devendra Sita Devendra vs. Deshprabhu Deshprabu The Bombay High Court considered the prenuptial agreement while determining how to divide the assets in the subsequent litigation.

• With the use of a prenuptial agreement, middle-aged businesswoman Anjali Sharma prohibited her husband from getting married again after their divorce and asserted custody of all the pets they had acquired together.
• A prenuptial agreement was made by a couple in Coimbatore prior to their marriage. “No party in the marriage will force the other party to change his/her religion after the solemnization of the marriage,” stated one of the agreements terms. The wife did not uphold the clause. In reaching its decision, the court considered the prenuptial agreement useful and accepted the court’s non-maintainability as a legitimate basis for divorce.
• Prenuptial agreements have been used as a guide by certain courts to help them determine what the parties’ intentions were before to getting married. A prenuptial agreement is not legally binding as a result. In India, a prenuptial agreement is not legally binding. They could have the ability to persuade and bolster the argument.

Rulings in which the court has firmly ruled that these agreements are illegal:

•  Indian judiciary has declared such agreements as invalid in Tekait Mon Mohini Jemadai v. Basanta Kumar Singh and Krishna Aiyar v. Balammal.
• In a legal setting, prenuptial agreements are not tenable or executable. They can, however, only provide as a hint as to the parties’ intentions.

Previous instances:

•  The Allahabad High Court ruled in the historic case of Bhagwati Saran Singh vs. Parmeshwari Nandar Singh that marriage is a civil contract made between two people in addition to being a sacrament.
• Until recently, prenuptial agreements were not recognized as legally valid in England, where their legal status was likewise unclear. 

The court held in Radmacher v. Granatino that prenuptial agreements that are mutually and voluntarily entered into by the marriage do not violate public policy concerns. This ruling changed the meaning of the term “public policy.” Three criteria were outlined by the Supreme Court to improve the chances of a prenuptial agreement being recognized lawfully by the court.

Legal Status of Prenuptial Agreements in India:

 Although the legal status of such agreements is still unclear, prenuptial agreements are becoming more and more popular in India as a result of the country’s recent change from a hierarchical to a more individualistic society.

With respect to Indian Contract Act, 1872:

Section 23 of The Indian Contracts Act, 1872 states that The consideration or object of an agreement is lawful, unless the Court regards it as contrary to public policy provides for such agreements to be considered void. Despite these agreements meeting the requirements under Section 10 of the Act, which states that All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void, courts have declined to provide legal force to these agreements on the basis of certain terms that violate public policy.

With respect to Special Marriages Act,1954:

When a prenuptial agreement is presented to the registrar along with the necessary documentation, it is deemed legally binding in cases where the marriage is performed under The Special Marriages Act of 1954.

With respect to Divorce Act,1869:

Pre-marital agreements are specifically mentioned in Section 40 of The Divorce Act of 1869, one of the few personal law statutes that applies to Christians. Before making a decision about the dissolution of the union, the District Court is required by this clause to look into “the existence of pre-marital or post-marriage agreements.” Prenuptial agreements for the division of land are permissible under family law in the only state with a standard civil code, Goa.

Conflict of laws: 

Section 40 of The Divorce Act of 1869 addresses prenuptial and postnuptial agreements; nonetheless, the court’s ruling governs their implementation. The application of all or a portion of the settled property, whether for the benefit of the husband, wife, or children (if any), may be subject to such directions from the court.

Global Scenario of Prenuptial Agreements:

Prenuptial agreements are becoming more and more common around the world. The content of prenuptial agreements and the circumstances in which they may be deemed unenforceable—such as when they are signed under duress, in difficult circumstances, or without full disclosure of assets—vary depending on the state and nation. Among them are:

• United Kingdom:

Prenuptial and postnuptial agreements would not be enforceable in England until recently, according to the courts there, because they went against public policy. In England, there is presently no legislation that supports or permits these kinds of partnerships. On the other hand, the English judiciary has enacted drastically new legislation regarding nearly every facet of the financial consequences of divorce, including the use of marriage contracts. Presently, the Supreme Court of England decided in Radmacher Si v. Granatino that a premarital agreement signed by a German heiress and her French husband should be given “decisive weight” and that prenuptial agreements were only evidence of the parties’ intentions.

The recent decision upholds the English courts’ strong position in assessing prenuptial agreements for justice, which is significantly more interventionist than that of courts in the majority of other countries. In practice, the decision would not bind prenuptial agreements. It directs courts to uphold justice in each individual case.

• Singapore: 

Singapore has customarily followed English law, which prohibits the implementation of premarital agreements. Nonetheless, the Singapore Court of Appeal decided in 2009 that it would normally uphold foreign prenuptial agreements. The Court concluded that, unless the provisions of the pre-nuptial agreement offend Singapore’s public policy, the Singapore courts should accord a significant (even critical) weight” to the terms of a pre-nuptial agreement between foreign citizens that are governed by and legal under foreign law.

 It is also important to keep in mind that the court has confirmed that the pre-nuptial agreement’s validity should be governed by its “proper” regulation, just like any other contract.

• Italy:

Prenuptial agreements made in accordance with international law may be enforced in Italy unless they violate public policy and are therefore illegal. In Italy, prenuptial agreements must be signed in front of a notary. 

However, if the couple desires a regime of complete exclusion from the group of land, they may make a declaration in front of the person performing the marriage, which must then be noted on the marriage certificate. Referencing foreign law is only permitted if the required procedures are followed, including the requirement that the terms of the foreign law be clearly stated in the contract.

Conclusion:

Getting a prenuptial agreement is a wise decision because partnerships dissolve quickly in the modern world. Although the concept of these agreements is widely accepted in Western countries, India has not yet fully embraced it. The Indian Community is still in the process of identifying and understanding the substance of these agreements. Since 2016, these kinds of agreements have been increasingly popular and prevalent in wealthy and capitalist households.

In the big cities, more people are drawn to this because they believe that having an agreement in place beforehand lowers their chance of having marital problems and takes care of any unintended obstacles that may occasionally arise. Pre-nuptial agreements must be recognized to have little that goes against Indian culture or public policy, and it is in the public interest to grant these “need of the time” agreements legal effect.

References:

1. https://www.legalserviceindia.com/legal/article-7414-prenuptial-agreements-for-society-at-large.html 
2. https://en.wikipedia.org/wiki/Prenuptial_agreement 
3. https://matrimonialadvocates.com/the-indian-concept-of-prenuptial-agreement/ 
4. https://www.lawteacher.net/free-law-essays/contract-law/definition-of-prenuptial-agreements.php 
5. https://www.legalserviceindia.com/legal/article-5050-analysis-of-prenuptial-agreement-in-india.html 
6. https://www.legalserviceindia.com/legal/article-8655-live-in-relationships-and-nuptial-agreement-a-critical-analysis.html