Prenuptial Agreement Drafting and Advice in India

A prenuptial agreement (prenup) is also known as a pre-marital agreement. Prenuptial agreements are generally based on western culture which is gaining great popularity in various parts of the world. It is an agreement which basically safeguards the assets of both the parties. In the 21^st century, where everything is temporary, relationships are also made and broken in fractions of seconds. The marriage is no more sacred and is slowly turning into a mere contract or agreement between the two individuals. If you are someone who wants to safeguard your assets after divorce but aren’t sure about how to move ahead, then connect with Karan S. Thukral, a Prenuptial lawyer in Delhi.

What Are Prenuptial Agreements?

A prenuptial agreement/ contract is an agreement/ contract between a couple in which they mention their financial status and the individual obligations in the event of divorce. Even though the concept of prenuptial agreement is not very popular in India, the formation of a prenuptial agreement before marriage is an important step by which we can avoid financial controversy and post-divorce trauma at the time of separation. A prenuptial contract must include these provisions which are mentioned below:-

• Divulging assets and liabilities of the parties.
• Position in financial or monetary terms
• Property share and division
• Specific properties
• Child custody
• Alimony and maintenance
• Insurance claims and joint account managements

Here are certain pre-requisites of prenuptial agreements/contracts:

• Prenuptial agreement should be properly drafted by an experienced prenuptial lawyer.
• It should be reasonable and should be fair.  
• The prenuptial agreement must be signed by both the parties and their prenuptial attorneys.
• It must contain all the assets and liabilities of both the parties.
• It must contain a clause of severability.
• It must contain clauses of division of assets and liabilities, custody, alimony maintenance, etc.
• It must contain child custody clause specifically and property share & division of both the parties.

Legal Status of Prenuptial Contracts in India

In today’s scenario, the prenuptial agreements are gaining high popularity in India, but the legal standing of such agreements is still not clear in this regard. With an ever-evolving society and under western influence, a shift in the approach amongst Indian youth has been observed. Freedom and availability of a choice are two facets of life which have now become an eminent part of any decision, be it marriage or divorce. The laws as to the same are yet to take shape despite the fact that people in India have moved on to accept the western culture. In India, even still, the institution of marriage is considered as a sacrament. On the contrary, in western countries, marriage is considered as a contract/ agreement between the two individuals. The glaring gap between the two ideologies is something we are yet to bridge. To say the least, a prenuptial agreement is legally un-enforceable under the Hindu laws, especially considering the position outlined under the Hindu Marriage Act. The Muslim laws, however, are different and do consider Marriages as a contract. Hence, we can make out from the above laid position, that a Pre-nuptial agreement is valid under the Muslim Laws.

Contractual Status of Prenuptial Agreement in India

Many of the countries like Canada, Italy and France have matrimonial regimes along with pre-nuptial agreements. But India does not have its 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 per Section 10 of the Indian Contract Act, 1872, the agreements are to be considered as contracts if they are made by the free consent of the parties.

However, section 23 of the Indian Contract Act, 1872 would declare prenuptial agreement void on the grounds of it being against our culture and morality. It must be emphasized that prenuptials are only considered to be ordinary agreements in India. Prenuptial agreements are only enforceable in Goa because it follows Portuguese Civil Code, 1867. Under Special Marriage Act, 1954, if all necessary documents (under the act) required for declaration of marriage are registered at the Registrar’s office, then prenuptials can be legally binding.

Judicial Precedents on Prenuptial Agreements

• In the landmark case of BHAGWATI SARAN SINGH VS. PARMESHWARI NANDAR SINGH, the Allahabad High Court held that marriage in addition to being a sacrament is a civil contract entered into between two parties.
• The legal status of prenuptials in England was also uncertain until recently whereby they accepted it to be legally valid. In the case of RADMACHER VS. GRANATINO the court said that prenups do not hit public policy arguments if they are mutually and voluntarily entered by the couple. This judgement redefined the phrase “public policy”. The Supreme Court set out three factors that would increase the likelihood of prenuptial getting accepted legally in the court. They are as follows:

1. The agreement must be freely entered into by the parties.
2. The parties must have a full apprehension of the implications of the agreement.
3. It must not be unfair to hold the parties to their agreement in the circumstances prevailing.

Conclusion

In India people have wrong presumptions about the prenuptial agreements. It is assumed that the formation of a prenuptial agreement before marriage will defeat the purpose of getting married; it, however, increases the confidence in the spouse’s intention of getting married. It can protect a person from entering into a wrong marriage in which one spouse is trying to get financial gain by fraudulently marrying the other spouse. With a changing world, there is a requirement for a change in laws as well. In any case, if you want to secure your position and assets before getting married, connect with Karan S. Thukral and his team of pre-nuptial lawyers in Delhi. They will guide you through the best possible way out and will help you secure yourself throughout.

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