A prenuptial agreement is a contract entered by the parties before getting married. Prenups are extremely common abroad but are not warmly welcomed in India.
In sickness or wealth, a prenup before marriage is the way forward. With a steep rise in divorce rates, prenups are no longer considered unromantic or insulting notions. In Australia alone, 60% of the people are happy to sign the legally binding contract before they say I do. 63% of divorce lawyers of United States believe that there is an increase in prenuptial agreements since 2017.
Prenups are extremely common abroad but are not warmly welcomed in India. Firstly, there is a lot of social stigma around divorce. Also, such contracts sound like a business deal, and couples feel uncomfortable entering into such agreements. Mostly, people think that such arrangements are only for rich people. But they are a lot more common than that. Having a prenup will save you from an unnecessary complex divorce battle.
What is a Prenuptial Agreement?
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A prenuptial agreement is a contract entered by the parties before getting married. It is a signed, registered and notarised document that usually outlines the distribution of assets, liabilities and issues relating to custody of children if the marriage falls apart in the future.
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It is a formal written agreement duly signed and witnessed by both the parties listing the articles brought at the time of the marriage and the items given to the wife by the husband (and vice versa).
The primary clauses of prenup cover issues like distribution of property acquired jointly or individually during the subsistence of the marriage, the custody of any children, the division of liabilities concerning taking care of the child, setting up an upper limit of alimony etc.
Are prenups legal in India?
The Indian legal system does not yet recognise prenups as legal agreements. At present in India, there is no categorical law governing prenups. They are four views about prenups in India-
1. They are governed by the law of contracts and not matrimonial laws. They require the same condition as for any other contract under Section- 10 of the Indian Contracts Act, 1872.
2. The other view is that prenups are against public policy and hence void under Section- 23 of the Indian Contract Act.
3. Some consider prenups as only a memorandum of understanding and are not binding on the parties.
4. Prenups can be considered binding if the marriage is solemnised under the Special Marriage Act, provided it is submitted along with other documents to the registrar.
Amidst the debate of legal validity of prenups, importance should be given to emotional feasibility offered by such agreements.
Prenups are seen as a sign of mistrust or lack of commitments among the people, but they help to solve financial and property issues.
Though prenups cannot be legally enforced, as they only indicate the intent of the parties, the courts, while pronouncing judgments, do consider the direction of prenups.
Why should you opt for a prenup?
As a society, we are witnessing a steep escalation in divorce rates in India. Things can get a lot worse if financial insecurities are added to your emotional trauma. Having a prenup is a good idea as it would protect the interest of the parties and can also protect you from unforeseen circumstances and exorbitant divorce settlements.
A prenup helps you to reduce uncertainty regarding the division of property after divorce. Courts in India will consider a prenup valid only if both the parties have mutually agreed and signed it voluntarily without any force, undue influence or threat.
It is essential to keep your emotions aside while drafting a prenup. Consider the following reasons to opt for a prenup-
1. Most of the legislation in India is biased towards females, and the law does not pay much attention to the financial status of the male. Hence, having a prenup ensures that rights of both the parties are taken care.
2. Prenups can also be useful to check misadventures under Section- 498A of the Domestic Violence Act.
3. No law in the country determines the sum of alimony arithmetically. Alimony is usually decided as per the discretion of the court. The court, while deciding the maintenance, may consider factors like the income of the spouses, the standard of living, the conduct of applicant etc.
4. By having a prenup, you can decide this amount beforehand and strive for an equal distribution which will be favourable to both the parties. It also ensures that the parties are relieved from carrying the burden of each other’s financial obligation post-breakdown.
Also, expensive advocate fees can be avoided.
What are the essential clauses of Prenup?
There is no fixed structure of a prenup, and it can be tailored as per the needs of the couple. The agreement should be fair and certified by a lawyer from each side. Since marriages are believed to be sacred, it is difficult to weigh them and put it in contractual terms. But here are some typical clauses in a prenup:
1. Separate Property- This clause refers to the property that is individually owned by the couple. In matters of divorce or death, it will remain separate only.
2. Shared Property– This clause covers the property which is jointly owned by the couple. It may be a house, car or anything that they have brought together. This clause addresses what needs to be done to the shared property when the couple decides to split.
3. Alimony- This is the most important clause of the prenup and states the amount of alimony that will be given to one spouse by another after considering all the parameters. It takes into consideration whether both parties are earning or not earning. It also takes into account if one party, who is not earning, starts to earn eventually.
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4. Earning during the marriage- The earnings done by each party during the marriage is considered as the separate property of that spouse. As per the mutual understanding of both the parties, they can decide how would they like to treat earning during the marriage.
5.Custody of Children– This clause settles to whom does the custody of children go after the divorce. The couple can opt for joint custody or sole custody. Under joint custody, both parents have legal custody of the child, but only one of them has physical custody of the child. However, in sole custody, only one of them has both the physical and legal custody of the child.
The agreement should be fair and duly acknowledged by both the parties.
The agreement should also have a severability clause which means that if one of the clauses of the agreement is invalidated the rest of the agreement is still valid.
The prenup should have a list of attached assets and liabilities of the spouse. Hiding assets can destroy the purpose of having a peaceful prenup.
A prenup should also have a sunset clause’ which states the expiry of a prenup and the ‘infidelity clause’ which sets out additional conditions that can be added/amended if it is discovered that the spouse is cheating.
Ultimately, only wedded bliss saves legal hassles. But it is always good to have some help. So you must add a pre-nup to your marriage to avoid post-marital trauma!