In India marriage is considered a sacred thing and not a contract between two people. However, sometimes things are not in our control and we end up in a difficult situation. A prenuptial agreement in India is a very new concept and not very well accepted but in the west, it is mandatory to sign a prenuptial agreement before proceeding with the marriage.
In foreign countries, a marriage is considered to be a contract between a husband and his wife.
Let’s read to find out more about prenuptial agreements in detail.
What is a prenuptial agreement in India?
A Prenuptial agreement, also known as a prenup is a legal contract that is signed by the bride and the groom before the solemnization of their marriage.
It is a legal contract that highlights the financial status and it also states the individual obligation of both the parties in case the marriage dissolves anytime in the future.
It has all the terms and conditions for both the parties that they have to fulfill in the events like divorce, separation, or death of the partner happens.
The Purpose of this prenuptial agreement is to avoid all the financial stress and trauma that the person has to go through at the time of separation.
A prenup must include several provisions like divulging assets and liabilities, position in financial or monetary terms, property share, and divisions specific properties, child custody, alimony, and maintenance as well as insurance claims and joint account management.
Suggested Reading – Reasons for divorce in India
The Legal status of a prenuptial agreement in India
According to the Hindu Marriage Act, A marriage is not a contract so the prenuptial agreement is not valid. Though under Muslim law and Christian law, marriage is a form of contract, they also do not validate prenup agreements. However, it is governed under the Indian Contract Act, 1872.
Suggested Reading – Divorce Grounds in India
What is the objective of a prenuptial agreement in India
The objective of the prenuptial agreement is that it provides a kind of security for the future mishappenings that can occur in the marriage like separation, divorce, death of the partner etc.
It will save the partners from the trauma and the struggle with the dates of hearing in the courts, facing acquisitions, blaming each other, or getting less payment as alimony or paying more as alimony. In such scenarios the prenup is the only time saver and also it’s easier to perform.
Mostly it happens that maintenance and alimony law support female spouses more and the judgement also favors the female spouse more. However in case of a prenuptial agreement , the financial liabilities are pre decided, so none of the partners gets prejudiced at the time of separation. A prenuptial agreement supports financial transparency and, as a result of which, both the partners know the financial condition of each other.
Suggested Reading – Aspects you must take care before filing for divorce
What are the clauses of a prenuptial agreement in India?
The causes of a prenuptial agreement in India is as given below
- A disclosure of liabilities and assets of both the parties
- Real estate properties of both the parties
- Financial and the monetary position of both the parties
- Sharing of properties if the marriage gets dissolved
- Maintenance or the alimony between the parties, if the marriage gets dissolved
- Monetary savings of both the parties
- The custody and maintenance of the children
- The financial status of both the party’s business and the partnership in business
- Credit card limit, debts, spending, and the payments
- Financial investments
- Retirement benefits and accounts
- The claims of medical insurance
- The management of joint bank accounts or other accounts
- The management of household expenses, bills, and other miscellaneous expenses
- Management of the jewelry
Suggested Reading – How to avoid paying alimony in India
Is the prenuptial agreement valid in India?
The prenuptial agreement holds no legal validity in India. However, both the parties with each other’s consent can come together and get into a prenuptial agreement. The court will only approve it if both parties have equal consent.
Advantages of a prenuptial agreement
Although the prenuptial agreement is not valid in India. However, it has some advantages too
- A prenuptial agreement protects both parties from each other’s debts.
- A prenuptial agreement eases the process of maintenance and legal separation and makes it speedy. Also, it helps parties to not to pay exorbitant fees to the lawyers.
- A Prenuptial agreement protects both the parties from each other’s debts.
- A prenuptial contract makes both the parties financially strong, and secure, in case any of them dies.
- A prenuptial contract reduces the chances of any conflict between the parties, which leads to a better understanding between them.
- A prenuptial agreement is most helpful in preventing the messy situation in court proceedings at the time of divorce or legal separation.
- A prenuptial agreement financially secures the future of both the parties, as the monetary things are pre-decided.
- This contract guarantees maintenance, alimony, and the actual spousal support needed.
- This contract prevents the business of the parties to get divided.
Disadvantages of a prenuptial agreement
Along with advantages, a prenuptial agreement comes with disadvantages too. Some of the disadvantages are listed below.
- Opting for a prenup agreement is a difficult thing because then society and the extended family judge you.
- A prenup agreement may also imply that you don’t trust your marriage and your partner.
- A prenup agreement also symbolizes that you don’t trust that your marriage will last long and you believe that eventually, it would end up in divorce.
- A prenup contract affects the lifestyle of the parties unfavorably.
- A prenup agreement can also enforce ‘no child’ provisions.
- A prenuptial agreement can intensify the importance of money and materialistic things instead of strengthening marriage and understanding.
Provisions of a prenuptial agreement that can be overruled by a court
There are certain provisions of a prenuptial agreement that can be rejected by the Indian Courts. All the provisions are discussed below.
- If the agreement of any provisions encourages divorce between the couple.
- If the agreement limits or decides any grounds for divorce.
- If the agreement contains a no child provision against the with of any of the spouses.
- If the agreement mentions the spousal waiver.
- If the agreement or any provision of agreement waives permanent or temporary alimony or counsel fees.
- If the agreement or any clause of the agreement mentions the religious upbringing of the children.
- If the contract mentions regulation of conduct during the marriage.
Prenuptial agreements under Muslim and Christian law
As we have discussed earlier unlike Hindu laws, Christian and Muslim laws consider marriage as a contract between the couple.
A marriage contract in both laws i.e the Christian and the Muslim law contains certain automatic property rights for both spouses. When couples do not sign a prenup agreement before marriage, their natural rights, according to both the laws are as discussed below.
- The couple shares the ownership of properties equally that have been acquitted at the time of the marriage. This means that the property they acquire will be divided between both the parties if they decide to get a divorce or if any of the spouse dies.
- Both have to pay the debts of each other in case of heavy loses.
- The couple share the control and management of any community or marital property. This right may include a right to sell or give away the property.