By - King Stubb & Kasiva on January 27, 2024
Pre – Nuptial agreements, also known as ‘prenups’ refer to agreements entered into by a couple intending to enter into a marital union before their marriage with the purpose of drawing the conditions for separation of property, distribution of wealth and custody of children in event of divorce, judicial separation or death of a partner. The concept of pre – nuptial agreements is not inherently an invention of India but an inspiration from various western countries like the United States, Canada, Australia and Britain.
The rationale behind pre – nuptial agreements is often to ease out the process of litigation and avoid disputes regarding various property, wealth, inheritance, alimony and maintenance related matters once the union of marriage has been dissolved or the couple does not intend to continue the marital union between themselves. In the present day, the concept of prenup agreements has also become significant in India due to increased number of divorce cases.
The Indian law does not have any specific legal provision for governing pre – nuptial agreements and neither are they recognized under any statute or legislation. In India, the dissolution of marriage takes place according to various personal laws according to which the marriage has been performed. According to the Hindu Marriage Act, every marriage between Hindus is treated as a sacrament and not a contract and therefore, any agreement enacted which is not in consonance with the personal laws is deemed to be invalid, illegal and contrary to the religious policy.
Secondly, under the Indian Contract Act, 1872 one of the foremost essential of a valid and legally binding contract is ‘consideration’ which refers to the monetary benefit which is received by each party to the contract. In cases of pre – nuptial agreements enacted by the parties before marriage, there is no monetary exchange between the parties and therefore a legally binding contract cannot be deemed to have taken place. Moreover, under Muslim personal laws a marriage is deemed to be a contract wherein all the essentials of a contract are also fulfilled and in cases of divorce, the personal law mandates a sum of money be paid to the bride.
As an exception, prenuptial agreements are valid and legally binding in state of Goa as envisaged under the Portuguese Civil Code which specifically empowers spouses to enter into such agreements regarding distribution of assets and ownership before entering into the union of marriage. However, there are various safeguards under the same Code for protecting the interests of spouses through the agreements such as no revocation or alteration of the agreement post solemnization of the marriage or right to reserve a part of the husband’s estate from being alienated by the wife. Additionally, the concept of ‘Dotal Marriage’ under the Code states that the husband would be entitled to obtain a share in the property of his father – in – law which shall be payable back to the wife in event of the dissolution of marriage.
The Hon’ble Supreme Court and various High Courts across the country have held conflicting views upon the validity of prenuptial agreements depending upon the facts of every case along with personal laws governing the parties. In the recent past, there has been an evolution pertaining to the interpretation of pre – nuptial agreements which can be observed through the following cases:
In the landmark case of Tekait Man Mohini Jemadi V. Basanta Kumar Singh, the Calcutta High Court noted that prenuptial agreements are invalid as they go against the public and religious policy of the country. Secondly, in case of Krishna Aiyar V. Balammal, the courts went on to hold that pre – nuptial agreements are void ab initio and cannot be executed in the courts of law.
However, in the cases of Pran Mohan Das V. Hari Mohan Das, the Calcutta High Court noted that the pre – nuptial agreements were valid and since the object of the agreement was not brokerage of marriage but distribution of property, the agreement was not opposed to public policy. In several other cases, the courts have also held that an agreement wherein the parties are at consensus regarding the amount of maintenance and separation of property post dissolution of marriage is valid since it does not intend to dissolve or breakdown a marital union.
Pre – Nuptial agreements are one of the most powerful ways of protecting one’s assets, wealth and property post dissolution of marriage. Moreover, such agreements also reduce the chances of parties being caught up in a loop of litigation once the marital union dissolves and leads to protection of their interest. Additionally, agreements wherein the parties have merely consented to sharing of expenses and maintenance instead of breakdown of marriage, such agreements can lead to an increased transparency and financial independence in the marital union.
Even though it is not assured that the parties in a pre – nuptial agreement can get their rights enforced by the courts, it can aid and assist the parties in expressing their intention towards performing their obligations in the marital union. Moreover, an agreement of such nature is also evidence to prove that the parties intended to enter into a legally binding relation.
In case of a divorce, the division of assets and alimony payout to the spouse happens as per conditions laid down in the prenup agreement. Prenups are prevalent in countries like the US and Australia and slowly gaining ground among Indian couples. However, it is not legal in India.
The Nikah Nama is all about Islamic teachings and what's fair in a marriage, while a prenup is more about money matters and planning for the future. It's good to know that prenuptial agreements may have different rules depending on where you live.
Parents can form a trust fund for their child that s/he can access once s/he turns a certain age. For instance, a woman who is 20 years old at the time of marriage, could access the fund at 40. Such MoU can contain clauses similar to a prenuptial agreement.
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