Analysis: Pre-Marriage Agreement

The prenuptial agreement is also known as a “prenup agreement.” It is an amicable agreement where the parties have their own free will and this agreement grants legal rights and obligations in accordance with the personal laws of the respective countries. This new concept is finally not recognized in India. [1]

Definition, a prenuptial agreement is an agreement, a document, a contract signed by both halves of the spouse. They sign it before they get married and it basically specifies what the couple wants to happen if the marriage ends.

The concept of marriage is the bond of love and affection for the union of two people. Marriage is the relationship of sacrament, purity, trust, and attachment. There are even people of different religious backgrounds and customs, but there is one thing that remains the same is the sanctity of marriage. The sanctity of the relationship is generated or produced by a marriage where no one wants to bring humiliation in front of society or in the family. Preserving the marriage at all costs is the only option left.

With the advancement of society, people are more aware and educated about their individual rights and duties that will help them protect their interests. Society has moved on from the old concept that the husband is the only one who earns money and bread in the family. Now both the wife and the husband contribute and contribute equally to the household chores, and both manage the household finance section equally. Over time, becoming aware of their rights, they have begun to seek clarification to protect their marriage from dissolution. One such answer is the “prenuptial agreement” that helps newlyweds before marriage to decide of their own free will about the distribution of property, assets, custody of children, and so on. Countries like France, Germany, Italy, and Canada have binding prenuptial agreements. . Taking a country like India where the prenuptial agreement is not valid and recognition is not being given. Under its Indian legal system, it goes against public policy.[2]

This article focuses on what prenuptial agreements are, what are their foundations, their applicability in India, their enforceability, global scenario, etc.

HISTORY OF PRENUPTIAL AGREEMENT:

The concept of prenuptial agreement or premarital agreement was started in Egypt. The first prenup agreement is known to be 2000 years old. At that time, this agreement was not supposed to be the written agreement stating the interests of both parties. Instead these used to be oral or written contracts determining how much property each party can add to the partnership, especially bride. This contract was used to determine the amount of dowry and wealth of the bride. Women were deprived of rights to own land for thousands of years. With time, provisions were made in the prenup to allow women to have the right on husband’s property until she died. Hence, the very first incident of prenuptial agreement took place in an ancient Hebrew marriage called a ketubah, 2000 years ago.[3]

RESISTANCE BY SOCIETY IN INDIA:

In India, the institution of marriage has a sacred status. It is believed to be a religious bond between the husband and the wife, and not a contract. Below following points state the reasons for social resistance:

  1. Impact on marital sanctity: Signing a prenup agreement before marriage can diminish the umbrella of trust between the two parties. It can encourage the parties two end their marriage in case of dispute, rather than working on building the institution of marriage.
  2. Using emotional affinity to take undue advantage: There can be an increase in fraud when one party convinces the other to sign the prenup agreement in the former’s.

PRENUPTIAL AGREEMENT

Disputes between married couples arise daily, the cases that the woman brings against her husband will invariably be a case of domestic violence, criminal breach of trust and other crimes such as:Unnatural crimes according to section 377 of the Penal Code of the India, miscarriage according to section 313 of the Indian Penal Code and many other offenses. The woman also goes and files a complaint under the Domestic Violence Law, claims provisional support there, files the divorce case under the Hindu Marriage Law, claiming alimony.

A prenuptial agreement is commonly known as a prenuptial and is a contract entered into between a couple prior to marriage. This contract establishes the rights that they acquire by marriage and what happens to those rights once the marriage is dissolved by death or divorce.

ESSENTIAL INGREDIENTS OF THE PRE-NUPTIAL AGREEMENT

A prenuptial agreement is usually signed, in writing, and notarized. In case a couple gets married, they list all the elements that contribute to the marriage one by one. The main clause of the prenuptial agreement generally establishes how a couple would treat properties acquired individually or jointly during the course of the marriage, such as:

  • custody
  • of children, Division of responsibilities related to a child and any other property, etc. certain limit for the provision of alimony.

We must think of prenuptial documents as a benefit for couples that can protect them and their individual assets or their children.[4]

1. Assets

The prenuptial agreement is a good alternative to safeguard personal property. For example, if you own a business and do not want to risk losing it in the event of separation, in this scenario you can add your business as a separate personal asset to your prenuptial agreement. Couples choose prenuptial agreements because without this, their assets will be divided according to the laws of their state. With this agreement, couples can choose how their assets will be divided. The four golden rules to know when writing a prenuptial agreement:

i) Partners must be completely honest about their assets and debts.

Ii) The prenuptial agreement must be signed before the wedding to avoid the appearance of incorrectness or duress.

iii) Each person must be represented by an independent legal advisor.

iv) The prenuptial agreement must be fair and reasonable.

2. Financial support of the children

In the event of divorce, the prenuptial agreement determines the property rights of the children and the inheritances on how the children will inherit the property and assets. Custody or visitation rights cannot be included as they will be investigated by the courts and the results will be in the best interest of the child.

PRENUPTIAL AGREEMENT – INDIA

In India, however, marriage is considered a sacrament and not a contract that can be entered into. Marriage is governed by the religious laws of India. For example, Hindus are governed by Hindu marriage law, Muslims are governed by Muslim personal laws, and so on. Therefore, there are currently no laws governing prenuptial agreements and prenuptial agreements have not received legal recognition from the Indian legal system. However, there are well-to-do families who enter into such agreements that are prenuptial in nature, agreeing on certain terms and conditions for their marriage and what will happen in the event that the marriage is dissolved, but said agreement or contracts cannot go away. against the law. marriage already in force. India, if so, those agreements are void. Such agreements will be subject to section 10 of the Indian Contract Law. The Indian Contract Act 1872 states that

“What agreements are contracts” All agreements are contracts if they are entered into with the free consent of the parties competent to contract, for a legitimate consideration and for a legitimate purpose, and they are not expressly declared void. —All agreements are contracts if they are made with the free consent of the parties competent to contract, for a lawful consideration and for a lawful purpose, and are not expressly declared void herein. “Nothing contained herein will affect the laws in force in 1 [India], and will not be expressly abrogated by this, so any contract must be entered into in writing 2 or in the presence of witnesses, or any law related to the registration of documents” [5].

To this day, such agreements have yet to be enforced in the Indian court of law. Such a prenuptial agreement generally supersedes the matrimonial laws that are available in a country and also the laws regarding:

Property Division,

Retirement,

Savings

Custody, etc.sign

Husband and wife in this agreement before marriage because during marriage or after marriage if there is any dispute. Whether separation or divorce arises, this agreement would provide the peaceful solution of the distribution of property, income and maintenance and its related provisions. This is called a prenuptial agreement.

The concept of prenuptial agreement comes from countries of Western culture such as the United States, Great Britain and mainly from European countries. This concept is foreign, out of context or does not apply in India because divorce as a concept is not common in India compared to culture in western countries.

Marriage in Hindu culture is seen as a pure sacred bond or where the husband and wife have to maintain their marriage for seven lives. In contrast, divorce in Hindu culture has no direct connection, but considering several years ago, divorce in India is becoming common.

The prenuptial lawsuit came to India due to the recent amendment of the law favoring women, the strict introduction of various laws such as the Domestic Violence Act 2005, Section 498 of the Indian Penal Code, the Marriage Act Hindu, Criminal Breach of Trust under section 406 of the Indian Penal Code. Currently, the Indian legal system has no provision / validity of prenuptial agreement.

Section 23 of the Contracts Act of India 1872,

” Which consideration and objects are lawful and which are not. —The consideration or object of an agreement is lawful, unless— —The consideration or object of a contract is lawful, unless— “is prohibited by law; 14 or is of such a nature that, if permitted, would override the provisions of any law; or is fraudulent; or involves or involves damage to the person or property of another; or the Court considers it immoral. or opposed to public order. In each of these cases it is said that the consideration or object of a contract is illegal. Any contract whose object or consideration is illegal is void ”.[6]

GLOBAL SETTLEMENT SCENARIO

Any divorce that occurs is faster, easier, cheaper, etc. Compared to other countries, where the agreements are very valid and legal, in India it still lacks legal recognition.

  • prenuptial Australian prenuptial agreement

In Australia it is also known as “binding financial agreements”. This agreement was first introduced and implemented in Australia in 2000 under the Family Law Amendment Act 2000.

Part VIII A of the Family Law Act contains the provisions relating to the prenuptial agreement, that is, the agreement must be in

  • writing.
  • Signed by both parties.
  • Specify any maintenance.
  • Have independent legal advice. The agreement obtained through fraud or error or undue influence will not be binding.

In China, prenuptial agreements are legal and enforceable. The 2001 Marriage Act under Article 19 establishes or establishes property, possession, debts and assets. China’s Supreme Court even clarified the types of property that will be held as prenuptial property. Countries like Canada, the United States, Denmark, Germany, Greece and many more have given legal recognition to the prenuptial agreement.[7]

CONCLUSION

In today’s world, breaking up beforehand is a wise choice as relationships break up easily. Such Prenuptial agreements are very much common and acceptable in western side countries but this concept is  not valid in India, as India has not yet accepted this agreement.

Author: Muditaa Kesrwani.


[1]  Nishant Kr. Srivastava,”Prenuptial Agreements in India, An idea whose time has come” Women Era, January (2021)

[2] Jhanvi Gupta,”Prenuptial Agreements: Legal Angle”, LexLife, May 14 (2020)

[3] Lisa,”Analysis of Prenuptial agreement in India”, available at:

http://www.legalserviceindia.com/legal/article-5050-analysis-of-prenuptial-agreement-in-india.html (visited on April, 19 2021)

[4]  Prenuptial Agreements: Who needs it,available at:

https://www.nolo.com/legal-encyclopedia/prenuptial-agreements-overview-29569.html#:~:text=A%20prenuptial%20agreement%20(%22prenup%22,will%20be%20after%20the%20marriage. (Visited on April 16,2021)

[5] Section 10 of the Indian Contract Act,1872, available at:

https://indiankanoon.org/doc/447653/ (visited on April 19,2021)

[6] Section 23 of the Indian Contract Act,1872, available at:

https://indiankanoon.org/doc/1625889/  (visited on April 19,2021)

[7]   JEREMY D. MORLE, “Prenuptial Agreements Around the World”,available at:

https://www.international-divorce.com/prenuptial-agreements-around-the-world-2 (visited April 19,2021)

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