Marriage is a solemn affair. It is quite often seen that people marry out of love and sometimes fail to consider practical aspects of the union. Many a times after marriage differences occur between spous es and they go for divorce, during the course of divorce there comes various problems such as division of assets, custody of child, maintenance provisions etc. to avoid the wastage of time and energy on this problem people have started considering signing an Antenuptial/Prenuptial agreement.
This article will focus on how to draft an Antenuptial/Prenuptial agreement, by explaining what is a Antenuptial/Prenuptial agreement; how these kinds of agreements are perceived by Indians; objective of an agreement like this, for example: how will it ensure financial stability to the spouses in the event of their separation etc.; what issues one should keep in mind while drafting an Antenuptial/Prenuptial agreement and a sample Antenuptial/Prenuptial agreement.
What is the antenuptial/ prenuptial agreement?
An antenuptial or Prenuptial Agreement is an agreement in the form of a contract that takes place between spouses before marriage. This agreement generally contains clear provisions with respect to each partner to protect their interest, in matters relating to the division of assets, maintenance provisions, custody division, financial savings, gifts etc. The Prenuptial Agreement basically is of Western origin, from countries such as Italy, France etc., which is now slowly gaining momentum in the countries of the East.
Position in India
Antenuptial/Prenuptial Agreement is not valid in India. It does not have binding force but only persuasive value. The reason for this is that marriage is considered under Hindu law to be eternal, even in ancient Hindu law there was no concept of divorce, though the concept of divorce has now become prevalent, still, agreements like prenuptial agreements are not socially acceptable.
Thus, in India, the Prenuptial Agreement, depending on its validity, acts as a supporting document to gather the intention of parties that they had during the marriage, at the time of divorce. The reason for it not having binding force is that contracts like these are invalid under Hindu marriage law, thus, they also become invalid under section 23 of the Indian Contract Act, 1872, which states that “the consideration or object of an agreement is lawful unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law.”
The objective of the antenuptial/prenuptial agreement
- Prevent legal hustle during divorce with regard to the division of assets, maintenance, custody of child etc.
- Prevent abuse of male spouses in case of untenable maintenance claimed by the wife after divorce.
- Most women leave their career after marriage, an Antenuptial/Prenuptial agreement ensures financial security to them after divorce.
- If provision regarding custody is added in the agreement, the child’s future will be secured and the child may not be burdened on any of the spouses.
- Generally, women are considered a weaker section of society, but it is not always the case, sometimes men are also not financially stable, through this type of agreement their financial position is also secured post-dissolution of marriage.
- Prevent abuse between ex-partners post-dissolution of marriage with regard to the division of assets, upbring of their children etc.
- Lessens the emotional and financial trauma during separation, to some extent.
Issues to be taken into consideration while drafting a prenuptial agreement
Before entering into an Antenuptial/Prenuptial agreement, there must be mutual consent between both the parties, the agreement must be honest and fair, it must also have an attorney certificate from both parties. The prenuptial agreement includes:-
If the couple live together before marriage, how that property would be treated or disposed off post the dissolution of marriage.
For instance, a clause like this may be added in the agreement, Property acquired by prospective husband and prospective wife before marriage, in which they cohabited before marriage would be treated as joint property and will be disposed-off by mutual consent by giving equal share to each.
Title to an existing property
Whether the property acquired during the marriage will be treated as non-marital, individual, separate or joint property. Example: Property acquired by prospective husband and prospective wife during the marriage will be treated as separate property.
Whether both spouses will be liable to repay the debt or only the one on whose name the debt was incurred. Example: Debt incurred by prospective spouses before the marriage will be treated as individual debt, in whose name it was incurred.
Debts Acquired During Marriage
In the event of termination of marriage whether the marital debt be subject to division or repaid by only one party. Example: Debt incurred by prospective spouses after marriage will be payable by both the spouses even after post dissolution of marriage.
It depends on the intention of the parties to file taxes jointly or separately while being in a marriage and whether they want to amend its character post-dissolution of marriage or not. Example: Prospective husband and prospective wife will pay their taxes individually post marriage.
Wages and salaries
Whether the parties will consider the salaries to be their separate property or community property. Example: Prospective spouses will consider their respective salaries as community property while being married to each other.
Whether the earning party’s retirement benefit will be enjoyed by the other party or will it be the earning party’s exclusive right. Example: If a prospective husband and prospective wife are married to each other during the time of claiming of retirement benefits, it will be enjoyed by both the parties, post-dissolution of marriage it will be earning party’s exclusive right.
Life insurance, medical insurance claims, etc.
Will these claims be covered jointly or each party will cover his or her own expenses? Example: Post dissolution of marriage prospective spouses will cover their own claims with respect to life insurance and medical insurance.
Management of joint bank accounts
Whether the jointness in the bank account remains intact or transferred in the name of only one party. Example: Post-dissolution of marriage all types of joint accounts will be transferred in the name of one of the prospective spouses with the mutual consent of both the spouses.
If a child is involved, how his/her educational and other anticipated expenses will be covered, in whose care and protection will she/he live. Example: Post dissolution of marriage if there is the question of child’s custody if the child is major she/he will have the discretion to choose between one of his/her parents and his/her expenses will be carried out by that parent, if the child is minor, it will depend on the financial stability of the prospective spouses, the one who will be more stable financially will get the child’s custody, but the other parent should also be provided proper visiting time during every month to spend quality time with his/her child to maintain their relation.
If any of the spouses are unable to maintain themselves post-dissolution of marriage, she/he can claim maintenance. The amount of maintenance may be pre-specified under the agreement, which may prevent hustle between spouses at time of divorce. It may also prevent either of the parties from taking undue advantage of the other during the time of divorce. Example: Post dissolution of marriage, if any of the prospective spouses is unable to maintain herself/himself, can claim maintenance from 35% of the income of the other spouse.
The agreement will be binding on both the parties and their successors as well as representatives. The binding nature of the agreement on both the parties(prospective spouses) is a mandatory clause, but it may or may not be binding on their successors or representatives depending on mutual consent between the parties.
If due to certain reasons any part of the agreement is invalid, illegal or unenforceable by law, it depends on the parties to decide whether the remaining provisions will be affected or not.
It depends on the parties to decide which state’s law will govern their prenuptial agreement.
Amendment or revocation
The amendment of revocation will depend on the manner prescribed by the parties, whether it will be written or oral, but it must be authorised by the competent authority with respect to state or local laws.
Signature of the parties
The agreement must be duly signed by both the parties under free will without any compulsion. It is evidence of acknowledgement on the part of both the parties, of the contract being fair.
Sample antenuptial/ prenuptial agreement
(Prospective husband, hereinafter referred to as party 1.)
(Prospective wife, hereinafter referred to as party 2.)
This prenuptial agreement is entered on day of 20, between:
Whereas party 1 and party 2 intend to marry each other in near future and wish to establish their respective rights, with respect to properties, assets etc. acquired before and after marriage, and their obligations after termination of marriage.
Whereas both party 1 and party 2 are aware of each other’s assets, disclosed by them in exhibit 1 and exhibit 2, and both are aware of the contents of this agreement and are entering into this agreement through their free will without any coercion or compulsion.
Except otherwise provided below, party 1 and party 2 mutually agree to the following:
- To treat property acquired during marriage as joint property.
- To repay premarital and post marital debts mutually.
- To pay taxes individually.
- To share benefits of retirement, life insurance and medicals claims, equally.
- To provide for both permanent and temporary maintenance of spouse
- [ADDITIONAL PROVISIONS ]
- Additional clauses will be valid upon due signature of both the parties, in presence of their respective counsels.
- On account of invalidity of any part of agreement other provisions will not be affected.
- The contents of this agreement will be governed by the laws of the state where both party 1 and party 2 reside.
- If party 1 and party 2, due to unforeseen circumstances could not marry on the prospective date, the contents of the agreement will be null and void.
This agreement will come into force immediately upon the marriage of party 1 and party 2.
I HAVE READ AND FULLY UNDERSTOOD THE CONTENTS OF THE ABOVE AGREEMENT AND I AM FULLY AWARE OF ITS IMPLICATIONS AND CONSEQUENCES THEIR-OF. I HAVE SIGNED THE ABOVE DOCUMENT WITH FREE WILL WITHOUT ANY FORCE OR COMPULSION.
Signature of party 1
Signature of party 2
PARTY 1 HAS SIGNED THE ABOVE AGREEMENT IN MY PRESENCE, BY FULLY UNDERSTANDING ITS CONTENTS WITHOUT ANY FORCE OR COMPULSION.
Signature of Counsel of party 1
PARTY 2 HAS SIGNED THE ABOVE AGREEMENT IN MY PRESENCE, BY FULLY UNDERSTANDING ITS CONTENTS WITHOUT ANY FORCE OR COMPULSION.
Signature of Counsel of party 2
As already mentioned earlier Prenuptial Agreements are not socially accepted in India because according to Hindu law, marriage is so sacred and pious that to enter into a prenuptial agreement is considered to be immoral. It is also considered to be against public policy. It is true that in ancient Hindu Law, due to the eternal and sacred nature of marriage there was no concept of divorce, but slowly and gradually the concept of divorce became prevalent due to change in the character of marriage and people’s mindset, over the years. But it will still take longer for Indians to accept something like an Antenuptial/Prenuptial Agreement. However, in today’s modernised society, this practice has become prevalent in metropolitan cities like Delhi, Mumbai and Bangalore, still it constitutes a very small number of populations. Due to rising acceptance among young couples, an increase in the independence of women and a rising rate of divorce, agreements like these are gaining momentum.
Thus, entering into a prenuptial agreement before marriage is beneficial to both men and women as it has benefits like, it protects men from false accusations under section 498A of IPC, in many cases where a woman is unable to support herself financially, a prenuptial agreement will help her to secure alimony in concurrence with her husband’s financial status and as per predetermined conditions. It also saves either party from getting financially exhausted after a separation or a divorce.
- Amrita Ghosh & Pratyusha Kar, Prenuptial Agreements in India: An Analysis of Law and Society, 12 NUJS L. REV. 217 (2019).
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