The landscape of marriages in India is rapidly changing and evolving. While marriage was earlier regarded as a lifelong commitment with divorce as an unthinkable option, ever changing and evolving mindsets have made divorce a harsh reality of today.
Prenuptial Agreements in India
If a marital discord between a couple is unresolvable and reconciliation is impossible, it would be best for the couple to part ways amicably through a mutual consent divorce. However, it is not always possible for amicable resolution and settlement of issues in case of a divorce and in such cases, protracted litigation becomes inevitable.
Such protracted and contentious litigation, in turn, gives rise to bitterness and leads to further emotional and financial drain for the couple. Such litigation also increases the volume of cases in Court, thereby increasing the burden on already burdened Courts.
However, such protracted litigation can be avoided or shortened if an agreement is already in place between a couple which documents their understanding of how to resolve issues related to shared finances and children in the event of a divorce. Such agreements are referred to as Pre- nuptial agreements or prenups.
Pre-nuptial agreements are contracts entered into by couples before marriage to determine and document their agreement and understanding on issues related to ownership, distribution and treatment of their assets, property, debts etc. in event of a divorce or separation.
Purpose of the Prenuptial Agreement:
The main purpose of such agreements is to function as a protective measure for each spouse’s pre- marital assets and keep them separate in the event of a divorce. Such agreements also serve as an opportunity for the couples to discuss, deliberate, negotiate and agree upon a mutually beneficial financial settlement in advance (in case of a divorce), rather than leaving such matters to be determined through a protracted and potentially acrimonious litigation. Prenuptial agreements also provide a pre-determined framework for addressing important matters like asset division, alimony/ maintenance payments etc. in case of a divorce.
A prenuptial agreement can also define arrangements for child custody, visitation rights, child -support etc. Such pre-planned settlement of potential issues can reduce uncertainty and conflicts in the future. A divorce/ separation is an already an emotionally challenging time for a couple and determination of such issues at such an emotionally vulnerable time often leads to further estrangement and acrimony
The question now arises as to whether such prenuptial agreements are legal and valid in India. While there is a growing awareness and acceptance of prenuptial agreements among young couples, there is no clear legal framework governing prenuptial agreements in India. The existing matrimonial laws, whether personal law or the Special Marriage Act, make no mention of such agreements.
Traditionally, such agreements were largely frowned upon as they were considered to be in violation of ‘public policy’ under the Indian Contract Act. However, different approach towards marriage under different personal laws have made the Court’s approach towards such agreements non-uniform and unpredictable. While a marriage is considered as a sacrament under the Hindu Marriage Laws, it is considered as a contract under the Muslim matrimonial laws.
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While the Courts have generally been more inclined towards invalidating prenuptial agreements in case of Hindu marriages and divorces, they have been relatively more inclined to accept such agreements in a Muslim marriage provided that the agreement is not in violation of Muslim personal laws.
However, in the recent past, few Courts have highlighted the need for prenuptial agreements to be considered valid and binding so as to meet the changing societal needs. Courts have been more willing to look into such agreements to understand the agreement and dynamics between a couple and pass judgements accordingly.
While prenuptial agreements are a way to avoid protracted litigation in cases of divorce, clear guidelines and safeguards need to be introduced to ensure that no vulnerable party is exploited and that outcomes of a divorce is equitable and fair to both the spouses. In absence of such clear guidelines and safeguards, pre-nuptial agreements run a risk of becoming another tool to further victimize the vulnerable, further weaken the weak and trample upon the timid.
