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Prenup: Should Young Couple Make Or Not?

A Pre-nuptial Agreement (commonly referred to as a prenup), is a written contract entered into by a couple before marriage 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 by divorce.

A pre-nuptial agreement is also called an antenuptial agreement, or premarital agreement.

There are 2 types of such agreement one is pre-nuptial and the other is post-nuptial. The former is made before the solemnization of marriage and the latter is made after the solemnization of the marriage.

Couples enter into a written pre-nuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights.

In simple terms, A prenuptial agreement is a written contract made between a man and a woman before they marry, in which they state how their assets such as property and money should be divided if they get divorced.

A prenuptial agreement (prenup) is a concept of western origin that is gaining its position in other parts of the world. Prenuptial agreements are gradually gaining popularity among young couples, who are seeking to protect their assets and attempting to negotiate the best deal for each of them in case of a possible end to their marital bond

People's Perspective
Married life is a private matter; it is a contract between Man and Woman (not a contract in India). A prenup on top of it is an agreement that makes a couple obliged to certain terms after their Divorce. Demanding terms of Divorce before you marry can be the start of lousy marriage life. People think of you as many things such as Cynical, Distrustful, chary, etc.

Distrusting your Partner at the beginning of a relationship is itself a start of a doubtful and weak relationship which can result in clashes between the couple in near future. People believe such marriages to be not based on a strong pillar and can collapse easily compared to non-prenup couples. In India Prenup is considered immoral as marriages in India are considered a religious sacrament between the Man and Woman rather than a Contract between the couple.

Spouse Perspective
A Prenuptial Agreement is usually offered by the spouse who has more net-worth and assets and the other spouse is in liabilities or has lesser net-worth and assets in comparison to the other spouse. In some cases, When the other spouse is asked to sign pre-nuptial agreements there often comes a second thought, doubt about their decision to marry the other person.

Some thought of denial of such agreement would weaken their relationship, agrees to sign such prenup but gradually and eventually such thought of doubts, insecurities, and feeling of Inadequacy breaks the bond of such couples. Many people wrongly assume that a conversation about prenup 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. Prenuptial agreements are advantageous to men as it reduces the misuse of women-oriented laws used for blackmail by women. On the other hand, Wives generally give up their careers to raise children; can feel financially more secure because of the Pre-nuptial Agreements.

In European countries, it is very common to have a prenuptial agreement between couples. One such example is the vocalist of Band Beatles Paul McCartney who divorced his wife under the prenuptial agreement; he is still reeling under debt because of the break-in marriage. Another example is pop diva Britney Spears who was under a prenuptial agreement with her husband where she had to pay a huge chunk of money to her husband after divorce.

Advantages of Prenuptial Agreements:
  • Prenuptial agreements can help couples, especially women, in the case of illness if either of the parties wants to divorce.
  • Prenuptial agreements ensure speedy maintenance, and expensive advocate fees can be avoided.
  • Provision for maintenance after the death of a spouse can be ensured.
  • Prenuptial agreements are beneficial to men as it reduces misuse of section 498A of IPC and also the Domestic Violence Act used for blackmail by women.
  • A prenuptial agreement can help in avoiding embarrassing situations such as sharing intimate details of marriage and photographs during the court proceedings.

India and Pre-nuptial Agreements
Prenuptial Agreement in India seems like an alien concept. Prenuptial Agreement is a western concept that is influencing the whole world. In India, Prenup is considered as immoral as marriages in India are considered a religious sacrament between the couples. Any agreement which is opposite to or contrary to the public policy is not acceptable. Even if such a prenuptial agreement becomes enforceable in India, it will not be accepted socially.

The wave of prenuptial agreements is growing in India. People from Metro cities are now becoming money-minded and the influence of western concepts has made them follow Prenuptial agreements and there can be seen an increasing number of prenuptial agreements between couples.

To date, there is no law enacted towards the prenup concept by the legislation but the judiciary is taking cognizance of the prenuptial agreement if both the parties are agreed to it and voluntarily sign the document without any fear, force, coercion, or undue influence. The agreement should be clear and fair stating the basic consented topics decided by the couple.

India is a Secular country. People of many religions live together and live with different family laws and have varied views and provisions regarding divorce and Pre-nuptial agreements. According to Section 40 of the Christian Divorce Act, 1869Pre-nuptial Agreements are allowed between the divorced parties at the time of passing of Judgment on a division of Assets. In the religion of Islam, marriages are viewed as a contract and pre-nuptial agreements are executed as a matter of course and frequently upheld in courts.

In the Hindu religion, the religion considers marriage a holy bond, one which may only end under specified circumstances. Under Section 13 of the Hindu Marriage Act, this generally includes if one partner is either (i) adulterous, (ii) cruel, (iii) deserts the marriage, or (iv) Incurable mental disorder. Divorce is granted upon fulfillment of any of the above circumstances.

Prenuptial agreements are enforceable if certain conditions are fulfilled. The conditions are:
  • The agreement must be fair, and it should be voluntary.
  • The agreement must have attorney certification from both the parties who signed it.
  • The agreement should have a list of all the assets owned by both the parties and also the liabilities.
  • The agreement should be reviewed by two different lawyers and must be certified by them.
  • The agreement should have a particular clause that clearly states that if any provision gets invalidated, the rest of the agreement would still be in force.
  • The agreement must have all the clauses of agreements arrived at between the Prospective.
  • The agreement should also mention the necessary history of the proposed alliance.
  • The Agreement must set out each party's assets, debts, and property rights before the marriage, settling issues of division of property and spousal support in the event of marriage breakdown.

Judiciary Precedents
In the case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh[1] of Calcutta High Court, the husband had signed a prenup agreement that he, along with his parents, would live in the house of his mother-in-law forever but some differences arose between the two families after the couple had been married for a few years and thereafter the husband moved out and demanded that his wife should also leave her house and should come to live with him at his parents' house.

When Mon Mohini challenged this in court, the HC held that as this prenuptial agreement attempted to control the rights of the husband given to him by the Hindu law; this agreement was against the policy and thus was declared to be void. Similarly, a prenuptial agreement requiring the husband to perpetually reside in his wife's house was held to be against public policy by the Allahabad High Court since it was viewed to constitute a restriction on the liberty of the husband[2]

Bhagwati Saran Singh vs. Parmeshwari Nandar Singh[3], the Allahabad High court held that marriage in addition to being a sacrament is a civil contract entered into between two parties.

In the case of Krishna Aiyar v. Balammal[4]A prenuptial agreement providing for payment of a fixed amount of money to the wife in case of her choosing to leave her husband for whatsoever reason was held to be against public policy

Further, the Bombay High Court in Bai Fatma v. Alimahomed Aiyeb[5] held that a prenuptial agreement specifying maintenance for the wife in the event of prospective separation, although entered into by a Mohammedan couple, was against public policy since the agreement encouraged separation in addition to providing for it

In the notable case of ONGC Ltd. v. Saw Pipes Ltd.[6], the Supreme Court of India observed that there is no precise definition of 'public policy' as it varies from "generation to generation and from time to time" therefore, the idea of 'public policy is ambiguous and its "narrow or wider meaning" depends on the situation in which it is applied.

In reaching this conclusion, the Hon'ble Apex Court referred to the case of Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly[7], where it was held that "the concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time". Resultantly, the new concept of 'public policy' takes the place of the old ones and what was considered once against 'public policy' may be upheld by the court today and vice versa.

In the case of Pran Mohan Das v. Hari Mohan Das[8], a person agreed to marry a woman based on the promise of her father to gift a house to his daughter. After the marriage, the plaintiff's father shifted the possession of the house through an unregistered gift. The couple maintained possession of the house for several years and sold it to some other persons.

The wife's father later sued to recover the house. Here, the Calcutta High Court held that the prenuptial agreement was good and valid and the principle of "part-performance of a contract" estopped the plaintiff from the recovery of the property. Moreover, as the agreement in question was not a marriage brokerage contract, it was not found to be opposed to public policy.

We have adopted many such things and practices from the western societies including divorce, Pre-nuptial Agreements are also a new western concept in India; which is in its early days, and the trend of such prenup agreements is yet to come. The need of the hour is deliberation, policy-making, and legislative action on this subject.

The legislature can enact a different statute that can govern all the Pre-nuptial and Post-nuptial laws concerning different religions as India is a Secular country, uniformity can fail in such laws and provisions being implemented. Different religions with their different religious practices, faith, and belief need different laws governing such as Pre-nuptial and Post-nuptial Agreements.

Public Opinion will be the biggest hurdle in India as it is believed that marriages don't survive because of the Prenup agreements. Prenups are considered taboo right now but over time they will also be accepted by the people.

In the enforcement of such Prenup agreements, Judiciary will play a vital role in the upcoming years. Till now the higher courts of India was having contrasting outlooks and perspectives in deciding the matter of the subject because of the absence of legislation and policies which eventually leads to a lot of ambiguity and non-uniformity. But after the enactment of such laws, the judiciary needs to upgrade themselves and take an unchanging point of view on this subject matter.

  1. (1901) ILR 28 Cal 751;1901 SCC OnLine Cal 60
  2. Khatun Bibi v. Rajjab, 1926 SCC OnLine All 134
  3. ILR 1942 All 518.
  4. ILR (1911) 34 Mad 398.
  5. ILR (1913) 37 Bom 280
  6. (2003) 5 SCC 705.
  7. (1986) 3 SCC 156
  8. 1924 SCC OnLine Cal 94

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