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Prenuptial Agreement and our Legal System

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. A prenuptial agreement (prenup for short) is a written contract created by two people before they are married.

A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person's property rights will be after the marriage. In some states, a prenuptial agreement is known as an antenuptial agreement, or in more modern terms, a premarital agreement. Sometimes the word contract is substituted for agreement, as in prenuptial contract. An agreement made during marriage, rather than before, is known as a postnuptial, postmarital, or marital agreement.

Prenuptial Agreement is a written form of a Contract entered into by a Couple prior to Marriage or a Civil Union that enables them to select and control many legal rights that they acquire upon Marriage and it also gives a Brief Description and Knowledge of what would happen if their Marriage Eventually Ends by Death or Divorce or even by Separation or by some other such means.

It is a Contract entered by the parties before getting married and it is signed, registered and Notarized Documents that usually outlines the distribution of assets, liability and issues relating to custody of children, if the marriage falls apart in future. This Agreement is mainly related to the Property or Distribution of Property/Assets that is owned or to be owned by them and even by the either parties of Couple whether it’s Spouse or Husband side individually before or after the Marriage.

It is Applicable for any kind of Matrimonial Disputes, Quarrel, Separation or Divorce situation arising during Matrimonial Period. This Agreement states that then how can a Husband and Wife can make a Peaceful Settlement of Property, Assets, Maintenance, Income, Retirement Benefits, Saving and also the Right to Seek Alimony (Spousal Support) which are agreed upon certain terms that provide certainty and clarify their Marital Rights. Although by law there are no downsides of a Prenuptial Agreement, however it’s still a social stigma in India and creates a Negative impression in the mind of people.

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.In India Prenuptial Agreement are neither Legal nor Valid under the Marriage Laws because they do not consider Marriage as a Contract.

The Indian Court takes Cognizance of a Prenuptial Agreement if both the parties mutually agree to it and sign it voluntarily without any undue Influence, force or threat. For a Prenuptial Agreement to be successful both parties have to be willing to be participate in it and have to be completely honest about their individual assets and liabilities. The Contract also has to be in place before the wedding takes place.

But in India Prenuptial Agreement are very rare and do not have any Governing Laws. It’s a fact that in India Prenuptial Agreement is not legal and the Indian Court says that the Provisions of Maintenance under Cr.P.C. and other of the Religious Act those Act can’t be Bypassed or Superseded by one Agreement between the Parties.

The Indian Laws says that the Prenuptial Agreement is not liable and can’t be Applicable in India, as the Agreement needs to be Reasonable and not Violate Pre – Existing Laws like the Hindu Marriage Act.

These Agreements may come under the Indian Contract Act, 1872. As the Section 10 of the Act states that the Agreements are to be considered as Contracts if they are made by the free consent of the Parties.

In further Section 23 of the same Act says that a Contract or Agreement may be Void if they are Immoral or Against Public Policy though if it was done by the Mutual Consent and Understanding and also with own will and satisfaction. So it further says that those Agreements or Contracts will be canceled and would not be taken into Consideration.

However it is not valid under the Hindu Marriage Act, 1955 in India, though it is governed under the Indian Contract Act, 1872.

Though Goa is the only Indian State where Prenuptial Agreement is Legally Enforceable as it follows Portuguese Civil Code, 1867 and other than Goa no other Indian State or Indian Constitution or Indian Law accepts and approve it as Legal in India, so it has been cited as Illegal Agreement in India.

A Prenuptial Agreement is to be signed by both the Parties at the time of Marriage as a Consent, which should state the Regime of Ownership. If the Agreement is not signed then the Marital Property is simply Equally divided between Husband and Wife/Spouse as per the Availability and also with regard to other Remedial Options. In simple terms the Prenuptial Agreement means an Agreement that is done in Written Form before Marriage.

But if the Prenuptial Agreement is signed by both the parties and if their consent is their then also Court of Law does not give any Validity to it and it will get dismissed in the Indian Court.
In place of Prenuptial Agreement as it’s not Legal and Void in the Indian Law. There may be a kind of Agreement or Affidavit or Documentation or a kind of Declaration on some of the certain points and it should state that the Dowry was either Given or Stated by the either of the Party, Jewellery, Financial, Residence, Property, Accommodation, Education, Job, Furniture, Appliances and much more other things that acts like a Useable or Consumable Items in the House. These things should be Notarized by the Note Commissioner.

The Divorce Act, 1869 under Section 40 speaks about ante-nuptial and postnuptial agreement but it is subject to the decree of the court. The court may make such orders with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or the children (if any). Therefore, even where the court has held that Hindu marriage is not only a sacrament but also a civil contract (Bhagwati Charan Singh v. Parmeshwari Nandar Singh), the Supreme Court has emphasised that the object of a contract cannot be marriage.

Prenuptials are treated as unenforceable agreements since either party may be required to sign away the right to legal remedy in the division of the marital estate after the dissolution of marriage. Under Section 28 of the Contract Act, any contract “by which any party thereto is restricted absolutely from enforcing his/her rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals” is void.

Prenuptial agreements are often signed when one or both spouses already have substantial financial assets. If one spouse is wealthier than the other, the wealthy spouse could disadvantage the spouse who doesn’t have as much money pre-marriage. However, individuals cannot take advantage of their spouse post-marriage because each spouse has a duty to be honest with his or her partner.

To ensure that prenuptial agreements do not undermine the marital duty to be fair and honest, states often require both spouses retain independent legal counsel. To retain legal counsel means to hire a lawyer to look over the prenuptial agreement and advise the client about the potential consequences of signing it. In order for the lawyers to be independent, the lawyers cannot have a conflict of interest.

This rule will prevent one lawyer from representing both spouses because the spouses will conflict in the event of a divorce. As a result, independent legal counsel means both spouses must have a lawyer who can review the prenuptial agreement. Although one spouse can pay for the other spouse’s lawyer, the payee’s lawyer must represent and advocate the payee’s interests and not the paying spouse. If both parties do not have lawyers advising them about the prenuptial agreement, the agreement may be voided by a court later on.

There are very Judgments which states that any Agreement in Contravention of Law will not be Enforceable, because there are various laws for Maintenance.

In the landmark case of Bhagwati Saran Singh vs. Parmeshwari Nandar Singh, the Allahabad High court held that marriage in addition to being a sacrament is a civil contract entered into between two parties.

The legal status of prenuptials in England was also uncertain until recently whereby they accepted it to be legally valid. In the case of Radmacher vs. Granatino, the court said that prenups do not hit public policy arguments if they are mutually and voluntarily entered by the couple. This judgement redefined the phrase ‘public policy’. The Supreme Court set out three factors that would increase the likelihood of prenuptial getting accepted legally in the court. They are as follows:
  1. The agreement must be freely entered into by both the parties;
  2. The parties must have a full apprehension of the implications of the agreement; and
  3. It must not be unfair to hold the parties to their agreement in the circumstances prevailing.
It was a historic judgement, and after this case the number of prenuptial agreements saw a steep rise not only in England but also Germany. This ruling has been further underlined in the case of WW v HW. However, even as case law continues to support it, prenuptial agreements are still not legally binding and there has not been much development on the Law Commission’s proposals of a “qualifying nuptial agreement” made in 2014.

In Mohammedan law the idea of pre-nuptial prevailed even before the popular westerns adopting it. As most Muslim marriages involve the negotiation of a mahr provision as part of a marriage contract which consists of a monetary payment from husband to wife, so the notion of Mahr, under Mohammedan law, as defined by Tyabji, “Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by an agreement between the parties, or by operation of law”.

In the case of Akileh v. Elchahal, considering the validity of mahr as a prenuptial agreement, the Appellate Court provided that–“a marriage is sufficient consideration to uphold an antenuptial agreement” and therefore, the contract between the parties was valid and enforceable.

It’s better to draft the Declaration before Marriage in place of Prenuptial Agreement in a way that it is clear, understandable and legally sound. 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 place of Prenuptial Agreement in India, if we draft an Declaration it too work same as Prenuptial Agreement by saving a person individually from Dispute arising in future in a Matrimonial Period in some or the other Manner whether Directly or Indirectly such as:
  1. Pass separate property to Children from Prior Marriage and after their Death.
  2. Clarify Financial Rights
  3. Avoid arguments in case of Divorce or Misshapening or in some such other relatable circumstances
  4. To get protection from Debts.

The Prerequisites for a Prenuptial Agreement are:

  1. The Prenuptial should be fair, honest, reasonable and duly acknowledged.
  2. It should be certified by attorneys of both the parties.
  3. The list of Assets and liabilities of both the spouses must be attached along.
  4. The Prenuptial should contain details of the agreed issues like Maintenance/Alimony division of Assets and Liability in Case of Dissolution of Marriage
    If the Prenuptial Agreement is not prepared then the Certain State laws will be Applicable and Following States laws will act and work accordingly.

Essential Clauses of Prenuptial Agreements are:

  1. Separate property or Shared property
  2. Alimony
  3. Earning during the Marriage
  4. Custody of Children and Maintenance
  5. Disclosure of Assets and Liability
  6. Financial and Monetary possession
  7. Life insurance, Medical insurance claims
  8. Management of Bank accounts or Joint account management of household, expenses, bills etc.
  9. Gifts in the form of Jewelry, Engagement Ring, Precious wedding bands, arts etc
    1. Though the clauses of the Prenuptial Agreement can be modified as per the requirement of the couples.
    2. Prenuptial Agreement facilitates the process of seeking Maintenance speedily and also prevents the parties from spending exorbitant fees of advocates.

Are Prenuptial Agreements Enforceable?

Prenuptial agreements are generally enforceable. Although the laws regulating prenuptials vary from state to state, common rules are:

Marriage

  • They are only enforceable if it is fair at the time of enforcement
  • Some states require certified copies of your marriage certificate

Divorce

  • You can have the judge handling your divorce make a formal order to restore you former name
  • No agreement can promote divorce
  • They must be in writing
  • They cannot include child support responsibilities
  • Attorney representation is usually required for both parties

What are Some Common Issues that Prenups Address?

When most people think of prenups, they think of a spouse who has significant property that want to protect in case of divorce. And while that is one reason that a couple might draft a prenup, it is not the only reason. Prenups are now a useful tool for those entering into second marriages and those starting blended families.

An engaged couples with children from prior marriages or relationships can use a prenup to lay out what will happen to some of their property when they die. This way, they can pass on separate property to their children but also provide for their spouse. Without a prenup or a proper estate plan, the surviving spouse might have the legal right to claim a much larger portion of their spouse’s property, whether or not that’s what they wanted or intended.

Some couples use prenups to avoid significant legal entanglements if a divorce happens. If they can spell out what property is going to which spouse and what debts and other financial obligations like alimony, they can make a stressful event like marriage dissolution a little bit easier. There are certain issues that cannot be in a prenup, though, like child support or custody arrangements and spousal duties or daily chores. Be sure to talk to an attorney to clarify what can and cannot be put in a prenup in your state.

What are the Benefits of a Prenup?

Although talking about prenuptial agreements can be hard or awkward for a couple, there is a reason that they exist, which is to help legally protect each spouse in the event something goes wrong. The most obvious benefit to a prenup is property protection. If they spouses can agree what property will belong to each during an amicable place in their relationship, it helps avoid drama and significant legal fees in the future. As stated above, it also allows blended families to protect property on behalf of certain family members so that they are not taken advantage of in the future.

A prenup can also establish how responsibility for debts will be divided between the spouses, and help protect each from issues with creditors. And because a prenup is a contract, it can be tailored to each couple’s specific and unique situation. Spouses can feel free to include special and specific provision pertinent to their relationship and legal and financial situations.

What are the Drawbacks of a Prenup?

While there are many pros to getting a prenup done, that does not mean that there aren’t drawbacks as well. From a purely emotional standpoint, couples may feel that even approaching the idea of a prenup means that there is trust issues between them, or that one party expects there to be in future.

Bringing up the issue of a prenup can be awkward. Also, for some couples a prenup may be entirely unnecessary. There are legal issues like child support, child custody, and others that must be addressed through other legal proceedings and cannot be decided through a prenup. In addition, most of the time a prenup is not particularly helpful for younger couples who haven’t acquired a significant amount of property yet.

How can I Make Sure My Prenup is Valid?

In the past, courts tended to view prenuptial agreements with skepticism, because many tended to involve a legal waiver of financial and legal benefits by the spouse in the weaker financial position.

Now, as blended families become more common and women have more equal earning potential, a court is more likely to uphold a prenup. If the agreement is understandable and both parties had the opportunity to negotiate with legal help if necessary, a prenup can be an important legal tool.

In India Legal system has no provision for a Prenuptial Agreement under the Marriage Law. That’s because in India Marriage is not seen as a Social Contract but a Religious bond between Husband and Wife. The Special Marriage Act does not have a Religious underpinning however, but a prenuptial Agreement is covered under the Indian Contract Act and Indian Court do give it a due consideration if it has been signed voluntarily without any dues.

Goa is the only Indian State that recognizes and gives Legal Validity to Prenuptial Agreement under the Family Law as it follows Uniform Civil Code. As Goa follows Portuguese Civil Code, 1867 and the Code continues to rule the realm of Family Law so it’s the only Indian Sate where it is Legal and Valid. To follow such type of Marriage in Goa it is Mandatory to stay six months in Goa by either of the Spouses at a time Marriage for Registration.

What Can’t a Prenuptial Agreement Enforce?

Although a prenuptial agreement can help structure and settle any disputes which may arise before and after the wedding, contract law can’t be used for illegal purposes.
Prenuptial agreements can’t be used to evade the law. Prenuptial agreements cannot be used to restrict or end child support or child visitation rights. The spouse with child support or child custody must still pay support or allow his or her ex-spouse to visit the children.

The agreement also can’t be used to encourage divorce. This can happen when the agreement disproportionally gives one spouse too much property or alimony in the event of a divorce or break-up. Since the purpose of a contract is to facilitate a legal promise, a contract which encourages one party to the contract to break that promise cannot be enforced. Finally, prenuptial agreements cannot be used to violate public laws.

For example, prenuptials cannot be used to restrict the right of free exercise of religion. Although spouses are free to quarrel over which church, temple, or synagogue to attend, if any, spouses cannot use the courts to settle those disputes.

How Do I Terminate a Prenuptial Agreement?

Prenuptial agreements typically contain a sunset clause which causes the agreement to expire when a certain event occurs, such as the end of the wedding, the possession of the marriage certificate, the completion of the honeymoon or just by a certain date.

If you are looking to end a prenuptial agreement before a breakup, there are a few options.

Prenuptial agreements are just contracts and like all contracts, are subject to certain rules:
Duress:
both parties must voluntarily consent to the agreement. If a party is forced into the contract, the contract will not be valid.

Non-complete disclosure:
both parties must give full disclosure as to their assets. Failure to do so will jeopardize the legality of the agreement.

The agreement is considered “unfair” to one party; the agreement strips one party of a significant amount of rights and assets.

Does the Use of a Prenuptial Agreement Mean a Lack of Trust?

Prenuptial agreements are not a symbol of trust or lack thereof. If anything, prenuptial agreements are a symbol of clarity. The agreements provide open communication between the soon to be newlyweds, which is an excellent habit to cultivate no matter what phase of the relationship a couple is in. Prenuptial agreements, contrary to soup operas, strengthen relationships rather than destroy those relationships. Older couples also use them to ensure that their children have access to their respective estates.

Few Judgments in Indian Court where Prenuptial Agreement were stated Valid and were it was stated Invalid:
In the case of U Po Kha v Ma Gyi, a suit was filed by respondent wife against her husband for a sum of money due to her under an agreement made before the marriage. The agreement was made on 11th April 1924 and they married couple of months later.

The respondent sued the husband as he had been paying 24 Rs a month instead of higher rate of monthly allowance if amount agreed upon in the agreement if they separated. Thus, the wife claimed for recovery of certain sum of money due as damages under the prenuptial contract. The court said that the relief claimed by the respondent cannot be granted in law and the application was dismissed.

In King V King, as a condition for entering into marriage, the wife stipulated that husband should reside with her after marriage at a bungalow belonging to her father where she carried on her business. The husband pressed the wife to go with her to which she refused and thus he filed for dissolution of marriage on ground of desertion by the wife. The court held that the husband had no valid reason to go back on the understanding into which he entered, and then to use that as an excuse for trying to put the wife in the wrong. The court thus dismissed the prayer of the petitioner and granted the decree in favour of the respondent wife.

In Hamidunnessa Biwi v. Zohiruddin Sheikh, in a suit by husband for restitution of conjugal rights, the wife relied on an prenuptial agreement, executed by the guardians of the husband, then a minor, and also by the husband, stating that the husband would always live at his mother-in-law’s house and the wife would never be required to leave her parental home or reside somewhere else; the court refused to uphold the agreement.

Similarly, in an agreement between the plaintiff husband and wife, stating that the husband would live at father’s house after marriage, the court said; it was inclined to view that such agreements are forbidden. The court in this case placed reliance on the earlier judgments in Tekait Mon Mohini Jemadai v Basant Kumar Singh and Meherally v Shakerkhanoobha and Krishan Iyer v Ballamal and asserted that they do not find anything in the Mohammedan law either definitely forbids or definitely sanctions an agreement like the present and the commentators also differ in the opinion.

Likewise, in Khatun Bibi v. Rajja, the husband and wife entered into a prenuptial agreement stating that the husband would be living at his wife’s house till the continuance of marriage and in the event of a breach of this agreement; the wife would be entitled to divorce. The husband moved the court for the restitution of conjugal rights but the wife sought to rely on this agreement. Since the court had already settled the question of legality of these kinds of agreements in Hamidunnessa Biwi v. Zohiruddin Sheikh it was declared invalid.

The courts have however upheld agreements which it found reasonable and in consonance with Muslim personal law. Like, an agreement entitling the wife to divorce or entitling her to fixed or separate maintenance on the happening of some contingencies have been declared as valid agreements by Court.

Some of the cases, where the courts have enforced the prenuptial agreement are as follows:
In Nawab Khwaja Md. Khan vs. Nawab Husaini Begam, an agreement was executed by father-in-law prior to marriage according to which the bride was liable to get karcha-e-pandan and the said agreement was enforced by the Court. Further, an agreement by the husband to pay a monthly sum of Rs 25/- in addition to the maintenance even if the wife lived separately was held to be enforceable.

An agreement authorizing the wife to divorce her husband in the event of him contracting a second marriage without her consent was upheld by the Calcutta high court. In Razia Begum V Sahebzadi Anwar Begum, there was an alleged prenuptial agreement in which the respondent had agreed to pay his wife a sum of Rs 2000/- month as kharcha-e-pandan which was too enforced by the court.

Tekait Mon Mohini Jemadai v Basant Kumar Singh is considered one of the important judgments dealing with the aspects of prenuptial agreement among Hindus. In this case, a suit for the restitution of conjugal rights was filed by Hindu husband. The wife relied on an agreement executed at the time of marriage by their guardians, according to which, the husband would always live with his wife at his mother-in-law’s house and would not be entitled to take her away.

It was held that, under Hindu law, marriage besides being a contract is a sacrament. It being more religious than secular in character and it is the bounden duty of the wife to live with her husband wherever the latter may choose to reside and to submit obediently to the authority of the husband. It was also held that his agreement relied on by the wife, if permitted, would defeat a rule of Hindu law and is opposed to public policy.

Justice Ghose while delivering the judgment observed:
“An agreement before and at the time of the marriage, controlling the rights of the parties, which the law confers upon them after the marriage, and which if enforced might make the marriage itself nugatory or infructuous and such an agreement would seem to be opposed to public policy. The present agreement permanently controls the rights of the husband, as conferred upon him by the Hindu law and it is against the public policy.”

Krishan Iyer v Ballamal was dealing with the question, whether an agreement between husband and wife to live apart from each other is valid or not said:
Even apart from the Hindu Law the agreement, we think, must be regarded as opposed to public policy and therefore not enforceable. It may well be deemed to be forbidden by the Hindu Law.”

In Sribataha Barik v Musamat Padma, the petitioner’s wife filed a suit against her husband, alleging that, she being the only daughter of her parent, her parent had negotiated with the husband and on getting his consent kept him as gharjamai. The petitioner lived with his wife in his father in law’s house but after few years he left the place. The case proceeds mostly on the basis that they should he live with her wife in her parent’s house according to the alleged prenuptial agreement.

The High court of Orissa overruled the decision of the trial court and said the finding and other order of the trial court are untenable, illegal, opposed to public policy .The court placed reliance on Tekait Mon Mohini Jemadai v Basant Kumar Singh and ordered that petitioner is liable to pay only for the maintenance of his child and set aside the order of the court below granting maintenance to the wife and directing the husband to stay with his wife in her parent’s home.

In Jamna Das v Smt Sahiboo, there was a prenuptial agreement between the spouses, conveying that in case the provision made for the wife’s upkeep after the marriage was insufficient he would pay Rs 50/ month and in appeal, the husband directed to pay the maintenance.
  • Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu. In the following case, the Bombay High Court took the prenuptial agreement into consideration for deciding the separation of the asset.
     
  • Anjali Sharma, a middle-aged business woman, forbade her husband to remarry post divorce and also claimed custody of all the pets bought during marriage with the help of a document called a prenuptial agreement.
     
  • A couple in Coimbatore before getting into the union of marriage signed a prenuptial agreement. One of the clauses of the agreement said, “No party in the marriage will force the other party to change his/her religion after the solemnization of the marriage.” The clause was not maintained by the wife. The court took the help of the prenuptial agreement to come to a conclusion and took the non-maintainability of the court as a proper ground for divorce.
     
  • Several Courts have taken, prenuptial agreement as a guiding factor to come closer to the fact of, what was the intention of the couples before entering into the marriage. This does not make a prenuptial agreement as binding. Prenuptial agreement in India is not binding. They might carry a persuasive value for strengthening the case.

Court neglected for the Agreement in cases:

  • Indian judiciary has declared such agreements as invalid in Tekait Mon Mohini Jemadai v. Basanta Kumar Singh and Krishna Aiyar v. Balammal.
  • Pre-nuptials are not tenable or executable in a court of law. However, they can at best be an indication of the intent of the parties.

Conclusion:
Some couples may have difficulty while approaching the subject of prenups. Many people wrongly assume that a conversation about prenups will defeat the purpose of getting married. However, it is likely to increase confidence in the other spouses’ intentions. Prenups can protect individuals from entering a marriage in which one spouse is trying to gain financial security by marrying the other.
  1. First of all, it is one of the most economical solution, thinking about the divorce price or any type of legal costs relating to adoption or maintenance via a court;
  2. secondly, parties have the freedom to include terms and conditions which would suit them and would also be mutually decided;
  3. thirdly, it is a stress-free system rather than going through the court proceedings; and
  4. finally, it maintains a test on misrepresentation made through either spouse and decreases opportunities of fraud and consequently spouses can escape from such sour experiences. It would also help to take a financial decision right before marriage and helps the couple in becoming more aware of how each spouse views the other’s responsibility in marriage.
But still public opinion stands as a huge challenge as in India wondering that marriage will not survive before stepping into it, is far a taboo and for this reason considered to be against the public policy. As of now, prenuptials do not have any validity in India.

Yes, two parties can sign an agreement before stepping into a marriage, and the courts will apprehend the settlement if both the parties together conform to it and sign it without external strain, affect or force. But all it is going to take is one party’s allegation and the settlement can fall apart, leaving the individuals in a judicial loop.

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