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This article is written by Kusuma Sai, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Introduction

Marriage Agreement is followed in the western countries of the world. In India marriage is not a contract. The people of India treat the marriage as a religious bond between the couple. India is a country that blows one’s own trumpet of its rich culture. The people in India follow culture more than the contract. Marriage Agreement is invalid in India under the Hindu marriage Act, 1955 and it is specifically governed under the Indian contract Act, 1872. Marriage is scrutinized as a contract between the spouse under Muslim law and Christian law. But Hindu law does not accept the concept of marriage agreement. From the contract the spouse can get certain property rights.

What is a marriage agreement?

An agreement which is made between a two married couple before marriage with the consent of the attorney is called a marriage agreement. The spouse before marriage should consult an attorney separately. Before entering into the contract, the agreement must be in writing. This marriage agreement is also known as a pre-nuptial agreement.

What is a pre-nuptial agreement?

An agreement between two people who intend to marry that deals specifically with the arrangement of property. Pre-nuptial agreement is not only for the rich. The scope of a Prenuptial Agreement can be modest or it can extend to a wide range of property, including spousal support. A Prenuptial Agreement generally lists all the property of each spouse – whatever they own and also the debts. It also describes the property rights that will be taken after the marriage.

In some parts of the world, a Prenuptial Agreement is well known as an “Ante nuptial Agreement”, or in present day it is called as a “Premarital Agreement”. An Agreement made in the course of marriage agreement, alternatively, is known as a “Postnuptial”’ “Post marital” or “Marital” Agreement. A Prenuptial Agreement takes effect from the day of solemnization of the marriage. 

Four Golden Rules

While drafting the Prenuptial Agreement the four basic rules that should be followed. They are as follows:

  1. Be Honest: Spouses should be honest in their assets and liabilities.
  2. Sign Before: The Prenuptial Agreement must be signed significantly.
  3. Separate Counsel: Each spouse should represent a separate and independent Legal Counsel for negotiation.
  4. Fair: The Prenuptial Agreement must be fair and reasonable. 

Who needs a prenuptial agreement?

Prenuptial Agreements are frequently used to protect the assets, finances and property. Following are the reasons why people need a Prenuptial Agreement:

  1. Protection from debts: Prenuptial Agreement is used to safeguard the spouses lacking each other’s debts. Spouses can direct a multitude of other issues too.
  2. Elucidating over financial rights: During the marriage, the spouses can already desire to clarify their financial rights and responsibilities even though they have children or not.
  3. Avoiding Arguments: In the event of divorce, to avoid arguments with your spouse.
  4. Separate property to children: Before marriage, if any of the spouse is having a child, then a separate property should be given to their children and then they can divide the property for each other. A surviving spouse shall have the right to claim the large portion in the property of the other spouse. 

Types of agreement

The main contract of a marriage agreement is to marry. There are different agreements that can be included in the marriage contract. They are: Prenuptial Agreement. Postnuptial Agreement, Separation Agreement and Marital Settlement Agreement. For each agreement spouses should consult their own attorney separately. 

  1. Prenuptial Agreement: The contract in which both the spouse enters into an agreement before marriage about marrying. This agreement narrates the property and assets of each spouse. In the course of marriage, the property and assets acquired by the spouse should be equally divided. Equal division of property and assets is done in the event of divorce.
  2. Postnuptial Agreement: This is an agreement made after marriage. The marriage must be legally enforced by Law. The division of property and assets can take place in the event of divorce. The marriage should be enforced by Law, so that the spouses have the right to divide the property and assets during divorce. 
  3. Separation Agreement: The Agreement where both the spouses agreed to live separately and apart is a Separation Agreement. This Agreement includes the child custody, maintenance of the child and also for the spouse. During the time of separation of spouse, they need to handle the child support, child custody and dividing of assets, liabilities and property.
  4. Stipulation of settlement Agreement: This is an Agreement where both the spouses agree to put an end to their marriage. Both the spouses should agree that they must get separated by this agreement without the involvement of the court. This Agreement is also called a Marital Settlement Agreement. This includes the property, assets, maintenance of spouse, and child custody and visitation arrangements without the involvement of the court.

These agreements can generally be enforced by any of the spouses. These agreements can be challenged in the court. The court may decide the case and the court can judge that the agreement is not valid. If these agreements are not fair or reasonable, the court has the authority to make the agreement as invalid. 

Advantages of marriage contracts/agreements

  1. Shell light on the agreements between the spouses.
  2. The manner of setting up the disputes which arise in future will be clear-cut.
  3. Assisting the estate plans.
  4. Bring down the quarrel between the spouses.
  5. During the event of divorce, attorneys’ payment can be reduced. 
  6. Describing the property which is a separate property and a community property. That property should be fairly distributed to the spouse. 
  7. From a previous marriage, rights of children and grandchildren can be protected.

There are no drawbacks of a Prenuptial Agreement by Law. Nevertheless it is still disgraceful in India and it creates a negative impression in the minds of people. It describes that the marriage made between the couple has already believed that their marriage would not last.

Clauses of the prenuptial agreement

A Prenuptial Agreement should contain the following clauses:

  1. Separate Properties.
  2. Real Estate Properties.
  3. Division of Properties.
  4. Disclosure of assets and liabilities.
  5. Life Insurance, medical Insurance, claims.
  6. Financial or monetary position.
  7. Management of household expenses, bills, etc. 
  8. Shared Properties.
  9. Management of bank accounts or joint accounts.
  10. Child Custody & Maintenance. 
  11. Gifts that include jewellery, engagement rings, precious wedding bands, arts, house, etc.
  12. Alimony. 

When to use a marriage agreement?

A Marriage Agreement is used in two ways. They are as follows:

  1. It is used when both the spouses are willing to marry.
  2. It is used in the event of divorce.

Legal provisions 

The Marriage Agreement will be valid and enforceable within the Laws governed in its respective state. The Legal Provisions involved in the Prenuptial Agreement are as follows:

  1. Property Act: Before marriage, the spouse should divide their property beforehand. They both should disclose the assets, financial issues and property before entering into the marriage contract. If any of the spouses is having children prior to the marriage agreement then they must pass a separate property to the children.
  2. Maintenance: After marriage, if the spouses are willing to get separated and want divorce then the spouse should give her/his share in the property or assets. 
  3. Alimony: The spouse is liable to pay alimony to the other after they got separated.
  4. Children Custody: During the time of divorce, if the spouses had a child, then the spouse is responsible for the custody of the child. If they go separated, then one spouse is allowed to visit the child- who is with the other spouse.
  5. Insurance Policy: The spouse is liable to get insurance when that spouse has been injured in any of the events. Before entering into an agreement, the spouses can discuss the Insurance Policies. It is not mandatory. After marriage, if any of the spouses has taken the Insurance Policy then the other spouse and children have the right to claim the insurance.

Procedure followed in drafting a marriage agreement

The procedure followed in drafting a marriage agreement is as follows.

  1. Parties Clause: Wife and husband are the parties to the Prenuptial Agreement. Describing the parties is very much important in the parties’ clause. The date on which the parties are going to enter must be stated and that contract will be signed by both the parties.
  2. Specifying the property owned by each party: Both the parties of this agreement should disclose the property owned by them. The parties should decide upon the property. The parties can determine their respective rights and obligations with respect to their own property. The property is divided between the spouses according to the property Laws of their states/Country.
  3. Taking advice from an independent attorney: Each spouse has the right to choose his/her own attorney. This clause is to ensure that none of the spouses is forced into the agreement and sign the contract. Admit that both spouses obtain the opportunity to have the agreement discussed by a lawyer.
  4. Grip over the contract: This is a common clause in every marriage agreement. Both the spouses must understand the contract and agree to the terms and conditions.
  5. Agreement is a contingent: The agreement is contingent upon the marriage. If any of the spouses is not intent to get married, there is no point of entering into a contract. This fact should be noted in the agreement.
  6. Description of property: The Separate Property of each spouse should be described in detail. The Separate Property may include the currently owned property or the property that can be owned in the future after entering into the agreement.
  7. Narrating community/marital Property: This clause is to designate the property that wants to treat. The Marital Property would be equally owned by the spouses. The Marital Property includes all the property obtained during marriage and prior to the date of separation. That property must not be a gift or inheritance. Spouses have the opportunity to contribute separate property voluntarily to the community by a written agreement.
  8. Elucidate the termination event: This is an important clause in the marriage agreement. If the spouses entered into a marriage without any agreement, they often disagree about when the marriage was officially over. The question arises how to divide the property obtained between the competing dates of separation. To avoid such confusion, this clause must be included without fail.
  9. Verifying the assets: This clause specifies that both the spouses should disclose their assets to have a complete overview of their financial position. If both the spouses fail to do so, the agreement may become invalid.
  10. Law Clause: This is a standard clause of a marriage agreement. The interpretation of laws will be a state’s law where both the spouses live.
  11. Entering the contract voluntarily: This clause specifies that each spouse has entered into the agreement is fair and entered not by pressure or force.
  12. Necessary Documents: This is a clause which specifies that both the spouses promise to sign a necessary document to implement the agreement.
  13. Entire Agreement: This clause is also known as an integration clause. This clause states that the document is a complete agreement in the form of written agreement. So that, later the spouses cannot claim that the specific term is not included in the contract.
  14. Amendment Clause: This is a clause that describes an amendment procedure. The spouses can include this clause to amend or revoke the agreement later.
  15. Binding Effect: Every marriage agreement must have this clause without fail. This clause declares that the agreement intends to govern the rights of their heirs and others who might have an interest in their property upon the death of the spouse. 
  16. Partial Invalidity: A marriage agreement shall include a “Partial Invalidity” clause. This clause states that if the part of the agreement is unenforceable then the other part of the agreement will remain in effect etc.
  17. Fees: This clause specifies that during the divorce, the spouse who is intending to get divorce shall be liable to pay the attorney’s fee. Each spouse should mention their attorney’s name in the marriage agreement. The spouses are liable to pay the attorney’s fee individually.
  18. Signature Clause: Create a block in the agreement to get the signature of both spouses. The spouses are supposed to do the signature in the marriage agreement in presence of the attorney and as well as notary.
  19. Getting a notary public: Both the spouses are supposed to visit the notary. After visiting the notary public, the spouse should sign the agreement in front of the notary. So that, the notary will sign and stamp the agreement. The Marriage Agreement will be valid after getting it signed and stamped by the notary.   

Conclusion

In these present days, it is common to speak of marriage as a contract. The statute of the states other than Indian Laws declares that marriage as a “Civil Contract”. It is clear that the marriage agreement is much more than a contract. A Marriage Agreement is only entered with a man and a woman.

A moment’s thought will show great differences between marriage and the ordinary civil contract. The marriage agreements identify the financial statutes of each spouse whose aim is to get clarity on the manner where assets and income are treated prior to marriage, during marriage and at the time of separation. The spouses are supposed to sign the marriage agreement and it should be legally binding on them. This agreement gives the right to fix their finances later to the spouses. The matters that are influencing the welfare of the children must be given first preference but will always be evaluated by the court in the event of any dispute which arises in the future. Usually, this agreement is taken on generally in second marriages where children are involved. 


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