Importance of Pre-Nuptial and Post-Nuptial Agreements in India

Pre-Nuptial and Post-Nuptial Agreements in India

BY ANIRUDH AGRAWAL

Introduction

It is believed by many in India that marriages are made in heaven and its breakdown an event of great misfortune. Marriages are viewed as a sacred prelude to a journey of joy, bliss and love. Pre-nupital and post nuptial agreements are related to these events of marriage.

Marriages are viewed as a sacrament in Hindu society but in case of Bhagwati Saran Singh vs. Parmeshwari Nandar Singh[1], the court held that a Hindu marriage is also a civil contract entered into between two persons, in addition to being a sacrament.

Pre-nupital agreement, also known as a prenup, is an agreement entered into between couples about to get married, wherein they outline and finalize (i.e. duly sign and register) the distribution scheme of their assets (mainly financial) and liabilities upon the failure of their marriage, before the wedding  takes place. A post-nuptial agreement is the same as a prenup with the only difference that it is signed between a man and wife after their marriage has taken place.

Though many countries like Canada, France, Italy, etc. are indulging in a prenuptial agreement but they are not much welcomed in India as people in our country don’t see divorce as a possibility. The nature of marriage being a sacred and holy one views a pre-nupital agreement as anticipation of divorce and low commitment between the couple. However it is advisable to them to think pragmatically as divorce or breakdown of marriage in future may result in great hardships to spouse.

Essential Conditions of pre-nupital and post-nupital agreements in India

In order a prenup or a post-nupital agreement to be valid, the following conditions must be fulfilled-

• 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 particular clause which clearly states that if any provision gets invalidated, the rest of the agreement would still be in force.
• 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 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 should have complete details about the assets and liabilities before marriage and details of support to be given by each party on event of breakdown of marriage.

Benefits of pre-nupital and post-nupital agreements in India

It is now observed to be desirable in the context of Indian society because of the following benefits it bring-

• This agreement can prevent them from each other’s debt.
• It ensures support from the spouse regarding monthly maintenance or alimony if any.
• It also guarantees remarriage rights and custodial issues.
• t also protects one’s business from getting divided.
• It protects the child’s future in case of separation.

Laws governing pre-nupital and post-nupital agreements in India

There are no laws governing pre-nupital and post-nupital agreements in India, hence there are different views regarding its enforceability. Generally they are not legally enforceable, but the court may treat it as the intention of the parties and consider it while pronouncing its effect. Till date, no court has yet been asked to enforce a prenup.

One view holds that these agreements come under Section 10 of the Indian Contract Act and has to comply with the requirements laid down in it i.e.

• the parties should be competent to contract,
• the agreement must be made with the free consent of parties
• there should be a lawful consideration and a lawful object in the agreement
• they should not have expressly declared to be void

Another view finds the pre-nupital agreement to be void under Section 23 of the Indian Contract Act if they are against public policy or immoral.

The third view holds that a prenup can be granted legally binding status, provided it is submitted along with the necessary documents as required under the Special Marriage Act 1954 for declaration of marriage and then, duly registered with the Registrar’s office.

However the accepted view is that they are not legally enforceable by the courts.

The Law Ministry has started a consultation process to legalize pre-nuptial agreements in India. It would take some years to finally see such kind of agreements a reality.

Anirudh Agrawal is a student pursuing B.A.LL.B from Hidayatullah National Law University, Raipur and is an acquisitive learner and writer.