Author: Aayushi Singh
Marriage is something that binds two people in a bond of love, care, affection, and respect. It is one of the holiest bonds on earth since time immemorial and considered to be a sacrament. Even though different religions have their respective customs, rituals, and traditions of forming and nurturing this bond, one thing remains common amongst all—the need to protect and preserve the sanctity of marriage.
It is the sanctity of the bond created by a marriage that still makes divorce a taboo in the majority of the communities around the world. Being divorced means bringing shame to the family. It doesn’t matter if the married couple is not happy, comfortable, or satisfied in their relationship or that the relationship has become abusive. All that matters in the eyes of society is the preservation of marriage at any cost. And to top it off, we all are well aware that divorce proceedings are anything but quick, smooth, or cordial. The word that can describe them perfectly is ‘brutal’.
However, as people are getting more educated, aware, financially sound, and independent amidst the rising social standards, they have started looking for solutions that can help protect their interests when their marriage ends. One such solution favoured by them is that of prenuptial agreements. It has now become common for a couple to enter into such agreements that help them decide beforehand the division of their property and assets, joint or otherwise, and the amount of alimony among other things in case the marriage ends in divorce.
But, in a country like India, where marriage is still considered a sacrament rather than a contract, prenuptial agreements lack legal backing. They are often considered “opposed to public policy” for anticipating the possibility of a taboo like a divorce in advance.
The article throws light upon what these agreements are, their legal enforceability, their use across the world, and whether they are opposed to public policy and have any legal backing or not.
What is a ‘prenuptial agreement’?
A prenuptial agreement (or a prenup) is an agreement between a couple, before their marriage, to decide in advance how the division of their property and assets, joint or otherwise, if any accumulated during the marriage, would take place. This agreement also contains clauses that dictate who will pay who and how much of maintenance/alimony. It helps them prepare for an unpredictable future by equipping them with means that would protect their interests. It helps with smooth and peaceful termination of their marriage by deciding their rights and obligations in advance.
A prenuptial agreement entered into with the mutual and free consent of the parties can guide the courts of law during the divorce proceedings.
A prenuptial agreement can be enforced if it fulfils the following conditions:
● The agreement or contract should be clear, fair, voluntary, mutually signed and in writing.
● The agreement or contract must be signed and executed before marriage.
● The agreement or contract must not be developed in a way wherein either of the parties is forced, pressurized, coerced, beaten, etc.
● The agreement or contract should be certified and notarized.
● The agreement or contract should comprise of a particular clause which mentions that irrespective of any provision being an invalid one, yet the agreement will be valid and be in force.
● The agreement or contract should list all the assets, liabilities, financial possessions, etc owned by both husband and wife.
● The agreement or contract should not have any information that is invalid, false or fake.
● The agreement or contract should comprise of all the provisions.
The legal position on the enforceability of prenuptial agreements in India
Prenuptial agreements are not valid and legal in the eyes of Indian Law because as per marriage laws in India, a marriage is not considered as a contract. The institution of marriage is considered to be pious, sacred and a religious bond between two persons i.e. husband and wife who have decided to stay together till eternity. The Indian Contract Act, 1872 does not consider such agreements or contracts with respect to marriage or wherein marriage is taken into consideration.
The following are the objectives behind drafting a prenuptial agreement:
● The prenuptial agreement considers both husband and wife as equal. Hence, it prepares both the parties to furnish their financial assets, liabilities, possessions, etc. before getting married and further prevent them from getting into legal hassles that might occur in case of divorce, mutual separation, child custody, child maintenance, alimony, etc.
● Generally, most of the alimony laws support women spouses and forget to consider the financial situation of the male spouse. As a result, the financial decisions tend to get biased and ultimately the male spouse suffers. However, in the case of prenuptial agreements, the financial status of both the spouses is clear and hence there will be an equal flow of money post-separation.
● Prenuptial agreements prevent male spouses from any sort of abuse caused by the female spouse in lieu of seeking maintenance post-separation.
● Prenuptial agreements encourage transparency and furnish the real financial positions of both the parties wherein there is no chance of any fraud.
Important provisions which a prenuptial agreement should contain
The following are the key provisions that have to be stated by both the parties within the prenuptial agreement:
● Disclosure of assets and liabilities
● Financial or monetary state
● Ownership of property or real estate
● Estate planning
● Alimony, spousal support or maintenance and child custody & maintenance
● The financial state of business, partnership rights in business
● Monetary savings
● Life insurance, medical insurance, claims
● Credit card limits, debts, spending, payments
● Financial investments
● Management of bank accounts or joint accounts
● Management of household expenses, bills, etc
● Retirement benefits and accounts
● Division of property
● Gifts within the sort of jewellery, ring, precious bands, art, etc
Advantages of Prenuptial agreements in India
The following are the advantages of a prenuptial agreement:
● Prenuptial agreements facilitate the process of seeking maintenance speedily and also prevent the parties from spending exorbitant fees of advocates.
● The agreement or contract protects both the parties from each other’s debts.
● Both the parties are financially secured even in situations wherein either of the spouses passes away.
● The agreement or contract protects and secures the child’s future even if both the parties decide to go for divorce or mutual separation.
● Women tend to give up their careers after marriage and decide to focus only on raising their family well. But this agreement financially secures the future of women.
● Prenuptial agreement guarantees custodial issues and remarriage rights.
● The agreement prevents the business from getting divided.
● The agreement ensures spousal support, maintenance and alimony.
● The agreements prevent couples from facing embarrassing situations in court proceedings and simplify the process of separation for both parties.
● The prenuptial agreement reduces conflicts between both parties.
Disadvantages of Prenuptial agreements in India
The following are the disadvantages of a prenuptial agreement:
● Deciding to go for a prenuptial agreement is a difficult and complex step for both the parties.
● The agreement implies that the couples do not envision the marriage to last forever.
● The agreement can adversely impact the life of both the parties post marriage.
● The agreement can enhance the importance of cash than the thought of cohabitation for both parties.
● The agreement can adversely impact the life-style of both parties.
Provisions in a prenuptial agreement that can be overruled by the courts
The following are the provisions in a prenuptial agreement that can be rejected or overruled by courts in India:
● Agreements that promote or encourage divorce/separation.
● Mention of spousal waivers
● Waivers of counsel fees, temporary alimony and permanent alimony
● Agreements that do not support child custody, child support and maintenance
● Regulation of conduct during the marriage
● Agreements that mention the religious upbringing of children
● Enforceability of no child provisions
● Limiting the grounds for divorce
● Agreement comprising of provisions requiring the spouses to marry
These agreements can be considered later as a reference or evidence and governed by the Indian Contract Act if both husband and wife have mutually decided and agreed upon it and signed it voluntarily without any force, coercion, threat or influence. The document will be equally considered like any other contract that is in written or oral form. Moreover, the document should clearly state the provisions and must be certified at the same time.
Prenuptial agreements have become extremely popular across the globe, owing to future stability in life that they offer. However, the indian populace has not been able to enjoy these benefits, partially due to the unawareness among the masses, but more so due to the aversion of the Indian legislative authority and the Judiciary towards accepting these agreements. It must be seen that prenuptial agreements have nothing that contradicts the indian ethos or public policy considerations, and it is the incomplete public interest to provide legal force to these “need of the time” agreements.