Prenuptial Agreements are agreements that are entered into by a couple before their marriage whereby the couple agrees for the modalities of separation of property, maintenance, alimony, distribution of wealth, child custody, etc in case the marital union is dissolved, either by way of divorce or judicial separation.
The purpose and intent behind entering into such an agreement, often referred to as a Prenup, is to prevent unnecessary differences, disputes and consequent litigation with respect to the heads covered in such an agreement.
The origin of Prenuptial Agreements is not rooted in Indian culture and tradition but is rather a concept originating from the western countries.
Who can enter into a PrenuptialAgreement?
A prenuptial agreement is entered between a couple intending to get married. It is essential that the parties should be above the age of majority and must be of sound mind.
What are the pros of a Prenuptial Agreement?
Certain benefits of entering into a Prenuptial Agreement are as follows:
- Clarity: One of the most important benefits of a Prenuptial Agreement is the fact that in case of a divorce or judicial separation, both the parties would be aware as to how the provisioning of maintenance, alimony, child custody, separation of property would be done. This promotes clarity and ensures that there is no dispute between the parties pertaining to the above.
- Saves on Litigation Expenses:Divorce proceedings are generally long drawn. Entering into a prenuptial agreement may save on litigation expenses of the parties since the parties have already decided the modalities which have to be followed in case of a divorce.
- Safeguarding personal property: Parties may already own various personal assets which they may intend to safeguard. Providing for the requisite clauses in the prenuptial agreement whereby the parties’ personal assets are protected from being a subject matter of marital property would ensure that it is safeguarded.
What are the Cons of a Prenuptial Agreement?
While Prenuptial Agreements may have their fair share of pros, but it is also necessary to understand the cons of the same. They are:
- Not necessarily binding: A Prenuptial Agreement may not be necessarily binding in a Court of Law in case the same appears to be unjustified or biased in the eyes of law. The legal validity of a Prenuptial Agreement in India is discussed in the subsequent section.
- Rigidity: Since a Prenuptial Agreement is entered into between the parties before marriage, the same may not be able to account for circumstances which may happen during the marriage and necessitate a review.
- Dilution of sanctity: A Prenuptial Agreement provides for eventualities in case of a divorce/judicial separation even before a marriage is solemnized. The discussions between the parties during the drawing up of the prenuptial agreement may lead to trust and moral issues thereby leading to disputes and differences even before the marriage is solemnized.
- Unfair and Biased: Though a Prenuptial Agreement is entered freely into between the parties, there may be chances of it being biased due to greater bargaining power of one of the spouses.
Are Prenuptial Agreements Valid in India?
There is no law in India which specifically deals with or recognizes Prenuptial Agreements. It can also be said that Prenuptial Agreements are not common in India since the same run counter to Indian traditions and customs. The fact that parties agree for what would happen in case of a divorce, even before entering a marital union, is not something which the traditional Indian society would believe in.
- Marriages under the Hindu religion is considered to be sacrosanct. Hence, any agreement which seeks to promote separation or alter the tenets of personal laws of marriage is considered to be not valid.In the matter of Tekait Mon Mohini Jemadai vs Basanta Kumar Singh, the Calcutta High Court declared a prenuptial agreement invalid and against public policy on the ground that the agreement provided that the husband would not take his wife away from her mother’s house and would follow the instructions of the wife’s mother at all times.
- The Bombay High Court had refused to recognize an agreement providing for maintenance to be payable to the wife in case of a prospective separation on the ground of the same being against public policy since it promoted separation between the parties.
- In a case before the Kerala High Court, the Court refused to recognize an agreement entered into between a husband and wife to live separately.
However, interestingly, prenuptial agreements are specifically recognized under the Portuguese Civil Code in force in the state of Goa. Article 1096 of the said Code confers upon the spouses to enter into a contract regarding their assets before solemnization of marriage.
Further, Prenuptial Agreements can also be found to be recognized under Muslim personal laws, since it regards marriage as a civil contract between the parties.
As can be seen, the recognition of prenuptial Agreements in India is not uniform and the same may not be enforceable in Courts of law. However, it is to be noted that a Prenuptial Agreement can always be produced in evidence to show the intention of the parties, in case any dispute/litigation arises in the future.
Conclusion
Prenuptial Agreements can prove to be immensely beneficial for the parties intending to enter into a marital union to safeguard their interests and assets, in case the relationship turns sour. While the validity of a Prenuptial Agreement may not have been expressly provided for under the laws in force in India, but in case the same are executed, the Courts may examine the same to understand the intention of the parties. Prenuptial Agreements also serve the purpose of assisting the parties in expressing their expectations and intentions to their counterparts before entering into a marital union.
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