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Pre-nuptial agreements

Written by: Jaita Chatterjee - Student of B.B.A.LL.B., Vth Year, Symbiosis Law School, Pune
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A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage or civil union by the people intending to marry. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. Many countries, including Canada (Quebec), France, Italy, and Germany, have matrimonial regimes, in addition to, or some cases, in lieu of prenuptial agreements .The United Kingdom as of 2007 does not enforce prenuptial agreements (although there have been some notable exceptions). They also do not have a provision for marital regimes .In India however there is no such thing as pre-nuptial agreement. , unlike most countries where a valid prenup is legal and binding when a couple separates, the Indian legal system does not recognise this pre-marital agreement. How important is such legal documentation is really a matter of great debate. As it is stated that Marriages are made in heaven but painful break-ups and ugly divorces happen here on earth.

Things can be a lot worse if financial insecurities are added to the emotional trauma and you are left near-bankrupt – just because your loving spouse has walked away with every hard-earned penny. Is it possible for both partners to have a “fair” deal when they decide to part ways? The answer is ‘yes’ if you have a pre-nuptial agreement in place.

In European countries this is a common sight that as there was a pre-nuptial agreements between couples , they eventually end up in bankrupt or pitiable state. The examples can be seen in the cases of sir Paul Mac Cartney, former band member of world renowned pop group Beatles, as even after few years of his divorce he is still reeling under huge outflow of assets and cash because of his painful break up with is wife , which resulted in making his wife Heather Mills as one of the richest women in Britain , thanks to the pre-nuptial agreement that existed between them. There is no dearth of examples as we can also take up the case of Pop diva Britney Spears who after almost three years of marriage broke up with her husband Kevin Federline and because of pre-nuptial agreement between them she had to part away with a major chunk of her assets.

Mumbai is getting money minded for an increasing number of pre-nuptial agreements in the city shows that even matters of the heart hold value, the brain still rules over most of them. A quick survey of some of Mumbai's top divorce lawyers revealed that roughly 10 per cent of marriages; mainly in the affluent socio-economic group are opting for pre-nuptial agreements. Just five years ago, a pre-nup was almost unheard of in India, it's been quite a steep rise. One can attribute the change to the growing number of divorces in the country. What makes it unique in our country, however, is the fact that couples forego their rights to the traditional Hindu laws in order to make sure their individual finances are safe.

A pre-nup is an agreement made between a couple that's about to get married that outlines the fate of finances and personal liabilities in case the marriage fails. In the case of the guys, it protects them from exorbitant divorce settlements. In the case of individual earners, it makes sure that nothing, not even a joint account, can become a point of dispute in case of a divorce. These days, some couples are even pre-determining matters like custody of a child so that it eases the prolonged procedure when people recourse to court of law to settle dispute amicably. As this generation is about ambitious, educated and focused people who do not want a single mistake to pull them down in life. Arranged marriages once gave couples the security of families knowing each other well. In the age of instant marriages, it's fine for couples to be practical about keeping their individual lives to themselves.

Prenuptials are enforceable guidelines , contrary to popular perceptions it is not only about financials but is much more.

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

1. The Agreement should be fair, and duly acknowledged.
2. The Agreement should have attorney certification from both parties as well.
3. The Agreement should have clause stating that if any provision of the agreement is
invalidated, the rest of the agreement still remains in effect.
4. There should be listing attached showing each spouse's assets and liabilities.
5. The Agreement should have all the clauses of agreements arrived at between the
prospective spouses.
6. The Agreement may also contain the necessary history of proposed alliance.
7. The Agreement should be reviewed by separate lawyers and duly certified by them.
8. The Agreement should be setting out each party's assets, debts, and property rights before the marriage, settling issues of division of property and of spousal support in the event of marriage breakdown.

However the prenuptial agreement may at least check some false prosecutions by unscrupulous Women, who are misusing Section 498A or Domestic Violence Act of IPC for blackmail and Extortion of money. That means, if the both parties are genuine, transparent and do not have any pre-planned ill mind, will accept the same before marriage itself. The Prenuptials stand a very good chance of enforcement in India if the prenuptial is certified by the court easily and with open mind and this is possible in the "Special Marriage Act" where in the magistrate goes through all the documents and then declares the marriage based on those. However magistrate can refuse the marriage in certain circumstances. eg: if one of the spouses is below the age of marriage the magistrate can dismiss the petition for declaration of marriage or if the magistrate feels the some clauses are unfair then also he can dismiss but once the magistrate has accepted the prenuptials then for demanding money or anything beyond prenuptials the onus is one other party to prove additional circumstances.

Simply put, a prenup is a pre-marital agreement between two people for the fair division of money, property or assets in case of divorce or death. It should also spell out in clear terms what couple intend to do with the assets acquired at the time of their marriage or after it. Although a court of law can ultimately settle these issues, many couples want to get it done even before the bonding happens – not out of any compulsion but because it makes them feel secure and totally in control.

There are many other benefits of a prenup: it can protect a person from his/her partner's debt loads; prevent one’s business/estate from getting divided; ensure spousal support in terms of monthly maintenance or alimony; guarantee remarriage rights and take care of child support and custody issues. All it requires is free consent and an honest declaration of individual assets and liabilities. But the crux of the matter lies elsewhere. Unlike most countries where a valid prenup is legal and binding when a couple separates, the Indian legal system does not recognize this pre-marital agreement. In fact, the concept has gained wide social acceptance over the past five years but till date, it is not a legally valid pact as per the laws of our country. Unlike popular belief, a prenup pact is not meant for the rich and the famous alone.

Although all matrimonial laws in India have provisions for a wife's maintenance and alimony (under the Hindu Marriage Act, however, either party can claim it), the amount payable always depends on the partners' income, property and other circumstances. So it might have helped the couples who are fighting legal battle , had they declared their assets in the very beginning, reviewed their financial positions and agreed to a mutually acceptable division of wealth. This is the primary reason behind drawing up a prenup – so that a person may have a fair idea about what to give and what to receive if marriage goes kaput. In spite of lacking legal sanctity under Indian marital laws, a prenup can still be treated as a valid contract if a person and his/ her spouse consent to go by its terms and conditions. And this will definitely help as he would not end up paying exorbitant divorce settlements or face a duped-out-of-compensation situation.

While the debate about its legal validity continues, it is better to look at the emotional feasibility of a prenup, which is often seen as a mark of mistrust or lack of commitment among couples even before marriage. one can't change the society overnight but prenups are certainly getting popular in India, especially in the metro cities, Around 20-25 per cent couples opt for some kind of pre-marriage settlement as it gives them great peace of mind and makes them feel strong enough to handle all unforeseen circumstances .One can’t help but see that pre-nuptial agreement is neither legal nor valid in India. This is because Indian laws do not look. at marriage as a contract. It is a religious bond between the husband and the wife. When two people marry in India no one foresees a divorce. And this is why no one even considers a pre-nuptial agreement . Any agreement which is contrary or opposed to public policy is not an acceptable agreement. This simply means that a pre-nuptial agreement is still considered like a threat to the marriage or even the couple anticipating a break in their marriage.

Though divorce is quite common in India now, it is still not considered a possibility before the marriage and hence there is no thought of a pre-nuptial agreement. There is no talk of a pre-nuptial agreement at all as a way of a by-plan as far as the legislation is concerned. There may be a few people talking about the pre-nuptial agreement, but India is far from including it in it's law and legislation plans. Even though we still have a long way to go before pre-nuptial agreements are implemented in India it is a way by which couples can protect their assets in case of a divorce A pre-nuptial agreement helps resolve and simplify a lot of financial and property issues. Since the division of assets are already done before the marriage, implementing what has been decided before the marriage makes life simpler .It just comes down to dividing the assets as mutually decided by the couple and will save nasty arguments later. But a person could get a pre-nuptial agreement drafted abroad, marry in India according to Indian tradition but the agreement will be valid in that particular country only.

As every concept has its own pros and cons this concept too has some advantages as well. The prenuptial agreement is characterized by great flexibility and can be tailor-made to the specific needs of the couple. Although a very practical agreement, there are many who do not see the need for such a document. It, essentially, is an acceptance of the fact that marriage may not last. In other words, a person is giving up on his/her marriage before one even get started. In fact, the couple, who are madly in love and who will soon vow that they will be together always, are expected to negotiate their own divorce settlement. It is of great interest to note that there was a recent news item, stating that the Karnataka state women's varsity Vice- Chancellor, Dr Syeda Akhtar has called upon Muslim girls to sign prenuptial agreements. Dr Akhtar said this (prenuptial agreement) is the crucial first step which will guarantee a Muslim woman's rights throughout her marriage. So, a prenuptial agreement can be an important document to enable a woman to assert her rights and ensure that she is not done out of her just dues.

If a person is considering a prenup it is best to approach the subject as soon as possible. One should not postpone it till days before the marriage. It might come as a very unpleasant surprise to one’s spouse if one pop the question just when he/she was contemplating a life of wedded bliss. Also if a person are proposing a prenup it might chill his/her ardour for sometime. A prenup can be successful ONLY if both the couple are scrupulously honest about their assets. Hiding information about assets can defeat the purpose of a prenup – a harmonious division of assets upon a divorce.

In conclusion it is perhaps wiser to go in for a prenuptial agreement that clearly states on a fair division of property, personal possessions and financial assets than fight over one’s favourite piece of furniture and crystal ware, later in the marriage.

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