In this article, Anubhav Kumar Pandey from Rajiv Gandhi National University of law talks about the legality of Prenuptial agreement in India.

What is prenuptial agreement

An agreement on the distribution of assets, liabilities, and issues relating to the custody of children if the marriage falls apart in the future, entered into by the wedding couples before the marriage is called prenuptial agreement. Prenuptial agreements in India are sometimes referred to as, pre-marital agreements.

Enforceability of prenuptial agreements in India

There is no particular law, which talks of legality or enforceability of prenuptial agreements in India. Prenuptial agreements in India are not binding. But this does not devaluate the importance of prenuptial agreements overall. The court might take the prenuptial agreement into consideration for understanding the intention of the couple. Prenuptial agreement has helped the court in reaching a proper settlement in cases for divorce.

A list of judgments where prenuptial agreements have been used by the court to arrive at a proper conclusion.

• Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu. In the following case, the Bombay High Court took the prenuptial agreement into consideration for deciding the separation of the asset.
• Anjali Sharma, a middle-aged business woman, forbade her husband to remarry post divorce and also claimed custody of all the pets bought during marriage with the help of a document called a prenuptial agreement.
• A couple in Coimbatore before getting into the union of marriage signed a prenuptial agreement. One of the clauses of the agreement said, “No party in the marriage will force the other party to change his/her religion after the solemnization of the marriage.” The clause was not maintained by the wife. The court took the help of the prenuptial agreement to come to a conclusion and took the non-maintainability of the court as a proper ground for divorce.
• Several Courts have taken, prenuptial agreement as a guiding factor to come closer to the fact of, what was the intention of the couples before entering into the marriage. This does not make a prenuptial agreement as binding. Prenuptial agreement in India is not binding. They might carry a persuasive value for strengthening the case.

List of judgments where Court has strictly declared such agreements invalid

• Indian judiciary has declared such agreements as invalid in Tekait Mon Mohini Jemadai v. Basanta Kumar Singh and Krishna Aiyar v. Balammal.
• Pre-nuptials are not tenable or executable in a court of law. However, they can at best be an indication of the intent of the parties.

Should I go for a prenuptial agreement?

By now you know that prenuptial agreement in India is a supporting document. Prenuptial agreements in India can be used to decrease the uncertainty relating to property division and other problems which occur during a divorce. Without going further into the morality issues and as to why prenuptial agreements should be made legally binding, let us look for clauses which every prenuptial agreement in India must contain.

Separate property clause

The clause says, after the solemnisation of the marriage, the parties to the holds have a separate right to their property. The separate property will be free from any claim that may be made by the other party. The property will remain separate in case of death or divorce.

Shared property clause

Any couple entering into the union of marriage will eventually think of buying property together. In a marriage, various gifts are gifted to the couples which are in nature of shared property. Example, a house gifted by the in-laws from both side. This clause will cover, what is to be done with the property which is shared by both the parties to the marriage.

Earning during the marriage

This clause says that All earnings of each party during the marriage shall be considered the separate property of the individual. The clause might read as follows, “Nothing in this Agreement shall be construed as relieving either party of an obligation to support their minor children. All earnings of each party during the marriage shall be considered the separate property of the individual. Nothing in this Agreement shall be construed as relieving either party of an obligation to support their minor children.”

Alimony, support, and maintenance

The most important clause. Sets out the payment that will be made after divorce. This is an empowering clause. Clause contain issues relating to the following,

• Whether both the couples are earning or not. If both the couples are not earning, what is the maintenance, support or Alimony, to be given to the party needing such support?
• What will be the situation when the party to the marriage who is not earning now starts to earn in future.

Wills/Codicils or other Transfer of Property

The clause might read as follows, “Nothing in this document shall be considered a waiver of any bequest of devise that one party may choose to make the other party by way of a will or codicil or by way of any gift, grant, or conveyance from one party to the other.”

Child Clause

This clause settles the disputes as to, to whom the custody of the child will go after the divorce. The clause might read as follows, “The parties agree that if the parties become biological or adoptive parents or guardians of a minor, this Agreement shall remain in full force and effect without any change or modification of any nature with the exception of requirements to support such children.”

A question arises, “If a document does not possess any binding value in the court of law, then what is the purpose of entering into a prenuptial agreement in India? Is there any alternative to a prenuptial agreement in India? Does Indian law provide any other remedy for such situations?

Alternative to prenuptial agreements in India

Yes. There are alternatives to a prenuptial agreement in India. There exist loopholes to every law but when there is no law at all things becomes much easier. The same goes with prenuptial agreements in India. Here are few alternatives to a prenuptial agreement in India.

Forming a trust and keeping aside the money for their future grandchild

A trust fund for your own child

Parents can form a trust fund for their child, which s/he can access once s/he turns a certain age. For instance, a woman who is 20 years old at the time of marriage, could access the fund at 40.

MoU (Memorandum of Understanding)

Such MoU can contain clauses similar to a prenuptial agreement. But again this MoU will not be binding. They might be helpful in drawing the court’s attention in a case.

Joint ownership or Co-ownership agreement

Simply put, when two or more person holds title to the same property. Apart from acting as an investment, a joint ownership of a house might provide you with tax deductions under the section 80 C of the Income Tax Act.

Prenuptial agreement in India, the GOA way!

Before marriage, partners can enter into a prenuptial or separation of assets agreement, drawing up a list of possessions that belong to each other. “This agreement is irrevocable but has no bearing on the children who have equal rights to both parents’ assets,” Shocked! But the Civil code in Goa provides for a prenuptial agreement.

Prenuptial agreement in India, Sample Agreement.

After reading this post, if you think that prenuptial agreement can smoothen your future married life, here is a sample for prenuptial agreement in India. This is just a sample, for detailed information you will have to consult a good lawyer.

________________________________________, hereinafter referred to as Prospective Husband, and _______________________________________, hereinafter referred to as Prospective Wife, hereby agree on this _____ day of ________________, in the year ______, as follows:

Prospective Husband and Prospective Wife contemplate marriage in the near future and wish to establish their respective rights and responsibilities regarding each other’s income and property and the income and property that may be acquired, either separately or together, during the marriage.

Prospective Husband and Prospective Wife have made a full and complete disclosure to each other of all of their financial assets and liabilities, as more fully outlined in the accompanying Financial Statements, attached hereto as Exhibits A and B.

Except as otherwise provided below, Prospective Husband and Prospective Wife waive the following rights:

1. To share in each other’s estates upon their death.
2. To spousal maintenance, both temporary and permanent.
3. To share in the increase in value during the marriage of the separate property of the parties.
4. To share in the pension, profit-sharing, or other retirement accounts of the other.
5. To the division of the separate property of the parties, whether currently held or hereafter acquired.
6. To any claims based on the period of cohabitation of the parties.
7. [SET FORTH RELEVANT EXCEPTIONS HERE.]
8. [ADDITIONAL PROVISIONS HERE. These can range from prescribing that the children will be raised in a particular religion to allocating household chores between the parties.]
9. Both Prospective Husband and Prospective Wife are represented by separate and independent legal counsel of their choosing.
10. Both Prospective Husband and Prospective Wife have separate income and assets to independently provide for their respective financial needs.
11. This agreement constitutes the entire agreement between the parties and may be modified only in writing executed by both Prospective Husband and Prospective Wife.
12. In the event it is determined that a provision of this agreement is invalid because it is contrary to applicable law of India, that provision is deemed separable from the rest of the agreement, such that the remainder of the agreement remains valid and enforceable.

This agreement will take effect immediately upon the solemnization of the parties’ marriage.

I HAVE READ THE ABOVE AGREEMENT, I HAVE TAKEN TIME TO CONSIDER ITS IMPLICATIONS, I FULLY UNDERSTAND ITS CONTENTS, I AGREE TO ITS TERMS, AND I VOLUNTARILY SUBMIT TO ITS EXECUTION.

_______________________________

Prospective Husband   ______________________________

Prospective Wife         _______________________________

Refferences

[2016 SCC OnLine Bom 9296].

[http://timesofindia.indiatimes.com/life-style/relationships/love-sex/Happily-married-but-conditions-apply/articleshow/12230194.cms?] [http://www.internationalfamilylawfirm.com/2012/04/prenuptial-agreements-in-india.html] [ILR (1911) 34 Mad 398.] [ILR (1901) 28 Cal 751.] [https://www.telegraphindia.com/1151104/jsp/opinion/story_51223.jsp#.WK2F9zt97IU]

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