Not many are aware of the concept of prenuptial agreements. The layman
understanding of the concept can be- 'a prenuptial agreement is a
written contract entered into by a couple prior to marriage or a civil
union that enables them to select and control many of the legal rights they
acquire upon marrying, and what happens when their marriage eventually ends by
death or divorce'. The fact that not many are aware of such agreements, clearly
indicates that in India, the concept is still in a fledgling stage.
For society at large
With the evolving nature of the world community and increasing westernization,
coupled with a sense of individualism, even managing marriages has become a
challenging affair. To cater to such affairs, proponents of prenuptial
agreements believe the concept to be a mender.
Although it is recognized in Islam and Christianity, for Hindus marriage still
remains a sacrament event and must not have a contractual orientation. The
Nikahnama of Muslims is the recognized and accepted form of a prenuptial
agreement in India. Marriage is tagged as a civil contract in Islam.
But the benefits/ brighter picture are often left unseen. Most of all,
prenuptial agreement is liberal in nature, and there is a strong sense of
empowerment. It brings a sense of independence and self-realization among women.
Falling prey to modernization, the termination of marriages is a likely
possibility, though it is not intended at the starting of a marriage. When
marriages fail, the couple has a subtle opportunity to walk out of a bad or
failed marriage with absolute economic and emotional considerations.
A prenuptial agreement is utterly helpful in clarity and conditions regarding
the custody of the children. For instance, considering the circumstances of the
parents, the actual custody and maintenance responsibilities of the parents
after getting divorced or separated. A couple ending their marriage with a
prenuptial agreement would also benefit the children as there would economic
surety of the child/children in the custody of the respective parent. Thus, we
can say that this concept would retain legal intentions, but also impose moral
obligations on the couple with regard to the children's welfare.
Such an agreement can be taken into acceptance as prenups are beneficial in the
unfortunate rise of events in people's lives. Consider a situation where the
husband deals with a long-term disease or illness and there is a certainty of
death, the least the wife could get after her husband's loss is a life ahead
with economic surety.
A marital bond is about pooling the independent resources and utilizing the
maximum benefits out of them together, but when the couple decides to dissolve
their marriage due to any unforeseen reasons, the problem arises whether the
dividing of assets would be proportional or equal. What a prenuptial agreement
would do is- only eradicate ambiguities in such a situation.
Not just narrowing the definition of prenuptial agreements to that of a
contractual nature, it portrays transparency about the expectations of a couple
from each other, thereby strengthening their marital bond. Moreover, there is
nothing wrong with managing one's own affairs and exercising autonomy when one
is actually independent (in case the marriage is dissolved).
The burden of courts is reduced to a great extent when the question of dividing
assets arises after a marriage ends. Having a clear picture already (a
prenuptial agreement) would save time for both the court and the clients in such
When the couple is part of a joint family, the other members of the family might
have intent on the assets of the couple. So, having a prenuptial agreement would
even halt such intentions.
Prenuptial agreements are not limited to only properties, but can even
incorporate a wide nature of duties as well, such as health, sharing pensions
(where one spouse is officially entitled to it), and even sharing any kinds of
rewards. For instance, when the wife is a dialysis patient, the husband is
morally obliged to maintain her and her medical expenses. In another instance,
where the divorced couple, the wife is a homemaker and a husband a government
servant, he is supposed to share the pension benefits with the wife.
Therefore, it is correct to say that prenuptial agreements are existent with
both legal and moral orientations in unfavorable circumstances and unfortunate
misfortunes. And with a bona fide intention regardless of what the society and
While we have seen the benefits of a prenuptial agreement, there lie some strong
criticisms as well. The most prominent one is exposing a religious event
(marriage) to a contractual event (prenuptial agreement). Conservatives are of
the view that this concept is not applicable to India, specifically the majority
Hindu community (approx. 80% population). There are negative societal
perspectives regarding this concept, in other words, a social stigma regarding
prenups. People even believe that instead of starting a marital bond with
positivity, prenuptial agreement views the marriage with a skeptical lens even
before the marriage starts. It would have a bad impact on the future children as
The scope of prenuptial agreements is very wide. What is really needed is just
the right amount of awareness with the right knowledge. We must optimistically
welcome this concept as it not only provides some sorted conclusions but also
the clarity of expectations. Most importantly, a prenuptial agreement is a
presumptuous tool, it only works if at all the marriage dissolves and does not
necessarily indicate that the marriage would end. It can simply be taken as a
safety measure in case of a mishappening. The judiciary will recognize the
concept gradually, but first, the masses need to have the knowledge and the
benefits with a broader perspective.
Prenuptial agreements should eventually get recognition. But to appeal to a
wider community, some model agreements should be formulated which recognize at
least the mainstream issues that are posed by the society. Legal backing is
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