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Legal Validity of Prenuptial Agreement

What is a Prenuptial Agreement?

It is basically an agreement in writing between Two spouses which states that in the event of death or divorce or separation what will be the monetary liability of the respective spouses.
In simple words it lays out the proportion of property, assets and money each of them will get if the marriage is dissolved.

Prenuptial Agreements in India

Pre-nuptial Agreement in India sounds like an alien concept. India is a country that boasts of its rich culture and the love and warmth that people share.

Unlike western countries where marriage is taken to be a contract between husband and wife, in India marriage is considered as a religious alliance of a man and a woman for life and thus a prenuptial agreement is legally not valid under the Hindu Marriage Act, 1955 in India, however it is governed under the Indian Contract Act, 1872.

In India, since marriage isn't considered a contract, it is very rare that you'll see or hear a couple getting a pre-nup. Now everyone has heard about a prenuptial agreement between a husband and wife and it has become very common in europian countries nowadays.

Pros and Cons
Everything has its pros as well as cons, so does a pre-nuptial agreement, let's understand one by one:
The advantage of a prenuptial agreement is that it provides a clear reference to the responsibilities of both partners in the event of a dividend or separation.
  1. Protection of children's rights and grandchildren from previous marriages.
  2. Protecting the property or interests of another spouse against the control of the other spouse in the event of separation or divorce.
  3. Protection of a spouse who has no debts or obligations, starting with the obligations/debts of his or her spouse.
  4. They can decide in advance on the maintenance or settlement received in a divorce case, thus protecting the spouses from fighting litigation and the legal battle.
Although there is no collapse of a pre-reconciliation agreement under the law, it is still a matter of social stigma in India and creates a negative perception in people’s minds as they feel that the couple has already thought they will not get married.

If the husband keeps the marriage above the materialist aspect of life, the pre-agreement agreement between the husband and the wife on the marriage can lead to pickles.

Essentials
  • Disclosure of assets and liabilities
  • Financial or monetary position
  • Real estate properties
  • Shared properties
  • Division of properties
  • Separate properties
  • Alimony or maintenance
  • Child custody & Maintenance
  • Life insurance, Medical insurance, Claims
  • Management of bank accounts or joint accounts Management of household expenses, bills, etc
  • Gifts in the form of jewelry, engagement ring, precious wedding bands, art, etc.

Prerequisites
  1. The prenup should be fair, reasonable and duly acknowledged.
  2. The prenup should be certified by attorneys of both the parties.
  3. A list of assets and liabilities of both the spouses must be attached along.
  4. A clause that states that even if a certain provision is null and void, the other provisions would still hold legal and valid, should be mandatorily be covered in the prenup.
  5. The prenup should contain details of the agreed issues like maintenance/alimony, division of assets and liabilities in case of dissolution of marriage that both the parties have decided together.
If you don't make a prenuptial agreement, your state's laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) State law may even have a say in what happens to some of the property you owned before you were married.

Under the Muslim and Christian laws, marriage is largely considered to be a contract between the marrying couple, and with that contract comes certain automatic property rights for each spouse. For example, in the absence of a prenup stating otherwise, a spouse usually has the right to share profits, ensure rights and even has the right to sell the property.

References:
  • https://www.latestlaws.com/articles/what-are-pre-nuptial-agreements-and-are-they-valid-under-indian-marriage-laws/
  • http://www.legalserviceindia.com/article/l284-Pre-nuptial-agreements.html

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