Prenuptial Agreement in India

A prenuptial agreement, antenuptial agreement, or premarital arrangement, usually abbreviated to prenup, is a contract signed between the parties planning to marry prior to marriage or civil union. The content of a prenuptial agreement may vary widely, but commonly includes provisions for property division and spousal support in case of divorce or breakdown of a marriage. Many nations, like Canada (Quebec), France, Italy, and Germany, provide marital provisions in spite of prenuptial provisions in addition to, even in certain situations.

Prenuptial Agreement around the World

The United Kingdom did not implement prenuptial arrangements as of 2007 (although there were several significant exceptions). They also have no provision for marital regimes. There is no such thing as a pre-nuptial agreement in India, however. Unlike most countries where a valid prenup is legal and binding when a couple separates, that premarital agreement is not recognized by the Indian legal system.

Very relevant such legal paperwork is really a major debate. Like it is mentioned here on earth, relationships are created in heaven however tragic break-ups and nasty divorces exist here. Things will get even worse if financial uncertainty were applied to the mental stress and you are left near broke–only because every hard-earned penny your caring partner has gone abroad.

In European countries, this is a common sight that they eventually end up in a bankrupt or pitiable state because there was a pre-nuptial agreement between couples. The instances can be found in the situations of Sir Paul Mac Cartney, former band leader of the world-renowned rock group Beatles, as only after a few years after his divorce he is now struggling under massive cash and riches owing to his traumatic split from his partner, which culminated in his partner Heather Mills being one of the richest people in Britain, thanks to the pre-nuptial deal that occurred.

Prenuptial Agreement

A prenup is an agreement made between a couple about to get married that outlines the fate of finances and personal liabilities in the event of the marriage fail. It protects the guys from exorbitant divorce settlements in the case. In the case of individual workers, it means that in the event of a divorce nothing, not even a mutual account, will become a source of contention. Some couples are even pre-determining issues such as a child’s custody these days, so it facilitates the prolonged procedure when people go to court to settle disputes in a friendly way. As this generation is about motivated, trained and oriented people who don’t want to be dragged down by a single failure in life.

Prenuptial agreement, if it meets the following conditions, is more likely to stand up:

  1. The Arrangement should be equitable and should be properly acknowledged.
  2. The Agreement should also have certification of an attorney from both parties.
  3. The Agreement will include a clause specifying that if any part of the Agreement is invalidated the rest of the Agreement stays in force.
  4. There should be an attached listing showing the assets and liabilities of each spouse.
  5. The Agreement should have all clauses reached between prospective spouses of the agreements.
  6. The Arrangement can also include proposed alliance’s required background.
  7. Separate attorneys will study the Contract and get it properly approved by them.
  8. In the case of marital dissolution, the Arrangement would set forth the properties, obligations, and property rights of each side before the union, resolving matters of land separation and spousal assistance.

Prenuptial Agreement in India

However, the prenuptial agreement may at least check some unscrupulous women’s false prosecutions that misuse Section 498A or IPC’s Domestic Violence Act for blackmail and money extortion. This implies that if the two parties are sincere, honest and have no pre-planned ill will, they would embrace the same before marriage itself. The Prenuptials have a very strong probability of being enacted in India if the prenuptial is conveniently and publicly approved by the court and that is true in the “Special Marriage Act” where all the papers are signed by the magistrate and then the marriage is recognised on the basis of such.

Simply put, in the case of divorce or death, a prenup is a premarital agreement between two people for the fair division of money, property, or assets. It should also spell out clearly what couples intend to do with the assets they acquired at or after their marriage. Although these issues can ultimately be settled by a court of law, many couples want to get it done even before the bonding occurs – not out of any compulsion but because it makes them feel safe and totally in control.

A prenup has many other benefits: it can protect a person from the debt burdens of his / her partner; it can prevent the division of his / her business/state; it can provide spousal support in terms of monthly maintenance or support; it can guarantee remarriage rights and take care of child support and custody issues. What it takes is a free agreement and a truthful declaration of assets and liabilities. Yet anotherwhere is the crux of the matter. Unlike most countries where a valid prenup is lawful and binding when a couple separates, this pre-marital agreement is not recognized by the Indian legal system.

In fact, over the past five years, the concept has gained wide social acceptance but, to date, it is not a legally valid pact as per our country’s laws. Unlike popular belief, a prenup pact is not intended solely for the rich and the famous.

Although all marriage laws in India have provisions for the maintenance and alimony of a wife (but under the Hindu Marriage Act, either party can claim it), the amount payable always depends on the income, property, and other circumstances of the partners.

If they disclosed their properties at the very beginning, checked their financial roles and committed to a mutually agreeable distribution of property, it would have benefited the spouses who are facing legal war. This is the primary justification for setting up a prenup – so that an individual will have a clear understanding of what to offer and what to expect if a marriage falls. Despite the lack of legal sanctity under Indian marital laws, if a person and his / her spouse consent to go by their terms and conditions, a prenup can still be treated as a valid contract.

And this will help as he would not end up paying exorbitant divorce settlements or face a situation of duped-out compensation.

While the discussion on its legal legitimacy persists, it is easier to look at the moral viability of a prenup, which is sometimes used as a symbol of distrust or lack of partnership even before marriage by couples. One can not transform culture overnight, but prenups are becoming common in India, particularly in the metro cities. Some 20-25% of couples opt for some form of pre-marriage arrangement because it gives them great peace of mind and makes them feel confident enough to deal with all unexpected circumstances.

This is because they do not look at Indian laws. At wedlock as a contract. It is a religious bond between wife and husband. No-one foresees a divorce as two men meet in India. So that’s why nobody wants just a pre-nuptial deal. Any arrangement that is contradictory to public policy or against it is not appropriate. This simply means that a pre-nuptial agreement is still regarded as a threat to marriage, or even to the couple anticipating a break in their marriage.

While divorce is now very normal in India, it is still not considered a probability before the marriage and hence no pre-nuptial arrangement is thought about. As long as the law is involved, there is certainly no mention about a pre-nuptial deal as a form about a by-plan. There might be a few voices thinking about the pre-nuptial arrangement, but India remains far from integrating it into the laws and preparations for laws. While we do have a long way to go before pre-nuptial arrangements are enforced in India, this is a way for partners to secure their properties in the case of a divorce. A pre-nuptial arrangement tends to address and alleviate several financial and property issues.

Because the distribution of assets is already completed before the marriage, the execution of what was agreed before the marriage makes it easier. It is just a question of splitting the assets as determined by the pair and then avoiding ugly disputes. But an individual may be able to get a pre-nuptial agreement drafted abroad, marry in India according to Indian custom but the arrangement would only be valid in that region.

Although a prenup is a valid contract, there are certain clauses in a prenup which can be nullified by a tribunal viz clauses

  1. Encourage matrimonial breakup
  2. Regulation (if any) of ‘No Baby’ clauses
  3. Specify some Religious education of children
  4.  Provide exceptions for conditional or lifelong spousal care or maintenance, attorney payments, parental protection or family support and maintenance;
  5. Allow such actions during the marriage;
  6. Capture the reasons for a divorce

It is best to approach the subject as soon as possible if a person is considering a prenup. Until the marriage one does not delay it until days until. It could come as a very unpleasant surprise for one’s spouse if you pop up the question just when he/she was contemplating a wedded bliss life. Also, if a person proposes a prenup, sometime he/she may be chilling his / her ardour. A prenup will only work if both are scrupulously frank regarding their money. Hiding information about assets can defeat a prenup purpose-a harmonious division of assets in the event of a divorce.

In addition, it might be better to go in for a prenuptial agreement which clearly states about a reasonable division of land, personal belongings and financial assets than fighting over one’s favourite piece of furniture and crystal ware, later in a marriage.

 

FAQs

Ques1. Is it possible for both partners to have a ‘fair’ deal when they decide to part ways?

Ans. The answer is ‘yes’ if you have a pre-nuptial agreement in place.

Ques2. Is a pre-nuptial agreement valid in India?

Ans. In India, since marriage isn’t considered a contract, it is very rare that you’ll see or hear a couple getting a prenup.

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