PRE-NUPTIAL AGREEMENTS IN INDIA: ALL YOU NEED TO KNOW As a society grows and its citizens become more educated and independent, the ster...
PRE-NUPTIAL AGREEMENTS IN INDIA: ALL YOU NEED
TO KNOW
As a society grows and its citizens become more educated and
independent, the stereotypes and taboos prevalent before start to break more
rapidly. Marriage is one of the most fundamental institutions of a society and
leads to the formation of the basic unit of a nation – family. In Indian
society, marriage is a union between two people as well as their families.
Needless to say, breaking up a marriage is a big taboo, let alone anticipating
it. But as the divorce cases are on the rise, the necessity of safeguarding
one’s interests before-hand cannot be denied.
Divorce cases and court fights can get very ugly, expensive,
time-intensive, and mentally draining. Misuse of section legal remedies by
women has also become rampant. Signing a Pre-nuptial agreement beforehand can
address many of these issues and save both parties from unnecessary mental and
financial hardships. A pre-nuptial agreement is a great tool to put an end to
malicious criminal prosecution against innocent husbands as well. Let us see
what a pre-nuptial agreement is and its validity in India.
What is a Pre-nuptial Agreement?
A pre-nuptial agreement refers to an agreement that is entered into by a couple before their marriage takes place, hence the name
"pre-nuptial".
A pre-nuptial agreement consists of terms, conditions, and tentative
means of resolutions to be acted upon in event of a divorce, judicial
separation or break-down of the marriage between the couple.
A pre-nuptial agreement also provides the court with a clear
understanding of the parties’ demands and wishes. Since pre-nuptial agreements
vary from couple to couple, their content is not fixed. Ideally, in order to
ease out the process of divorce and settlement later-on, a pre-nuptial the agreement contains terms and conditions regarding the following aspects:
1. Gifts exchanged between the parties at the time of marriage.
2. Financial details of the bride and groom, such as previous debts and
credit history, assets, savings, joint property, insurance, etc.
3. Agreed alimony between the parties (this is gender neutral)
4. Maintenance rights of the wife in event of break-down of the
marriage.
5. Exclusive rights of the wife or husband over and above their previous
spouses as well as children from previous marriages (this is subject to
previous pre-nuptial agreements signed by the individuals)
6. Custody rights and maintenance rights of the child.
Is a Pre-nuptial Agreement valid
in India?
A Pre-nuptial agreement in India is usually considered invalid. In Hindu
marriages, it is usually held invalid because the Hindu matrimonial law
considers marriage a sacred alliance. However, with respect to Muslim and
Christian marriages, a pre-nuptial agreement has a higher chance of being
considered valid as matrimonial alliances are treated as a contract between the
parties. Pre-nuptial agreements are valid under section 40 of the Divorce Act,
1869 which states that the District Court may look into "the existence of
ante-nuptial or post-nuptial settlements” before deciding upon the dissolution
of a marriage". They are valid in Goa where they are allowed towards
family property distributions. Under Muslim Law, a 'nikah-nama' works similar
to a pre-nuptial agreement. A pre-nuptial agreement will be valid if the
marriage was solemnized under the Special Marriage Act and the Pre-nuptial was
registered along with all other legal documents pertaining to marriage at the
time of marriage.
Pre-nuptial agreements are enforceable only under the Indian Contract Act,
1872, subject to statutory conditions such as:
1. The agreement was entered into with the free and mutual consent of both
parties.
2. Both the parties are competent, that is, of sound mind and above the
age of 18 years.
3. The agreement has a lawful consideration and lawful object, that is,
nothing in the contract should be unlawful, illegal, or against public policy
(public policy, in this case, being encouraging the breakdown of a marriage or turning
a sacred alliance into a time-bound contract).
4. The agreement should not contain anything which goes against other
laws in force, especially matrimonial and property laws.
What are the advantages of a
Pre-Nuptial Agreement?
A pre-nuptial agreement has various advantages, but the prime advantage
is the prevention of harassment from either party or securing one's financial
interests in the future. A pre-nuptial agreement also serves as an authentic piece
of evidence to document the exchange of gifts at the time of marriage. This is
especially crucial for Indian society where dowry is still prevalent.
Further, pre-nuptial agreements save time and hard-earned money of
either spouse. Pre-nuptial agreements also help save division and fragmentation
of family business and properties.
A pre-nuptial agreement is a blue-print and helps reduce the uncertainty
of divorce settlements. It aids the equitable division of properties and assets
between the couple.
Alimony in Indian courts is usually an exercise in discretion. Husbands
usually write-off their inherited property or parents of the husband debar
their son from family property to protect property against matrimonial claims.
This can be prevented via pre-nuptial agreements. Pre-nuptial agreements
provide the court clues as to the intention and financial background of the
parties. This is very useful for deciding the maintenance amount of children as
well as the spouse.
As the number of false dowry demand cases is on the rise, pre-nuptial the agreement is an efficient tool to protect husbands against such harassment.
Indian laws are majorly tilted towards women, thus, pre-nuptial agreements can
help override this legal indifference.
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