In this article, Alric Tirkey of Institute of Law, Nirma University discusses whether entering into a prenuptial agreement is advantageous or not?

Prenuptial Agreement

In a country like India where prenuptial agreement which is also known as antenuptial agreement, or premarital agreement is neither legal nor valid under the marriage law in India because in India marriage is not considered as a contract between husband and wife on the other hand according to Indian culture marriage is considered as sacred religious bond between husband and wife and prenuptial agreement between spouse do not accepted by the society. However, in India prenuptial agreement are governed by the Indian contract act 1872.

Prenuptial agreement is a written agreement between husband and wife who will about to married in which the contract defining themselves about their respective rights, duties, and responsibilities in the event their marriage terminates by death of any spouse, annulment, separation, or divorce. In this agreement, the both the parties agrees to give an equal and equitable division of property, support spouse or other rights they will entitled under the law.

Objective

Although In India all the matrimonial laws of the country have the provisions for wife’s maintenance and alimony under the Hindu Marriage Act in which either party can claim it. at the time of divorce the amount of maintenance will always depend upon the partner’s income, property and other assets. So it might have helped the couples who are fighting legal battle, had they declared their assets in the very beginning, reviewed their financial positions and agreed to a mutually acceptable division of wealth with the help of the prenuptial agreement. This is the primary reason behind drawing up a prenuptial agreement in which both the parties have the fair idea about what to give and what to receive at the time of divorce. In spite of lacking legal sanctity under Indian marital laws, a prenuptial agreement still be treated as a valid contract if a person and his/ her spouse consent to go by its terms and conditions of the agreement. ^[1]

Condition

Following are the condition for the prenuptial agreement^[2]

1. The prenuptial Agreement between parties should be fair, and duly acknowledged.
2. The prenuptial Agreement should have attorney certification from both parties as well.
3. The prenuptial Agreement should contain clause stating that if any provision of the agreement is invalidated, the rest of the agreement still remains in effect.
4. Prenuptial agreement there should be list attached which is showing each spouse’s assets and liabilities.
5. The prenuptial Agreement should have all the clauses of agreements arrived at between the

prospective spouses.

6. The prenuptial Agreement may also contain the necessary history of proposed alliance.
7. The prenuptial Agreement should be reviewed by separate lawyers and duly certified by them.
8. The prenuptial Agreement should be setting out each party’s assets, debts, and property rights before the marriage, settling issues of division of property and of spousal support in the event of marriage breakdown.

Important provisions which a prenuptial agreement should contain^[3]

The following are the key provisions that must be stated by both the parties in the prenuptial agreement:

• Disclosure of assets and liabilities
• Financial or monetary state
• Ownership of property or real estate
• Estate planning
• Alimony, spousal support or maintenance and child custody & maintenance
• Financial state of business, partnership rights in business
• Monetary savings
• Life insurance, medical insurance, claims
• Credit card limits, debts, spending, payments
• Financial investments
• Management of bank accounts or joint accounts
• Management of household expenses, bills, etc
• Retirement benefits and accounts
• Division of property
• Gifts in the form of jewellery, engagement ring, precious bands, art, etc

Form Needed

This form includes the following key provisions:^[4]

• Separate Property:- The agreement will allow the parties to set out the property being brought into the marriage that should remain separate in the event of death or divorce. The agreement will enable both the parties to set out the property being brought into the marriage that should be separated at the time of divorce or death of the any
• Shared Property:- identifying the property that will be shared between both the parties.
• Division of Property:- set out the way in which how all the property will be going to divided at the time of divorce or death of any of the spouse.
• Disclosure of Assets and Liabilities:- Gives the opportunity to the couple defining each party’s assets and liability coming into the marriage and this is consider as important provision as failure of this provision lead to invalidate the agreement between parties.
• Alimony, Support and Maintenance
• Estate Planning/Wills: every couple should have acknowledged about the estate and identify what should be included (every couple should have comprehensive estate plan).
• Additional Clauses: Provides room for the parties to add additional provisions that they may find important.

Advantages of the prenuptial agreement ^[5]

1. A prenuptial agreement between couple going to married can protect the inheritance rights of children and grandchildren from a previous marriage.
2. If any of the spouse own any business or professional practice, a prenuptial agreement between couple can protect that interest so that business or practice did not divided and subject to the control or involvement of your former spouse upon divorce.
3. If one spouse having more debt than the other spouse with help of prenuptial agreement which can protect the debt-free spouse from having to assume the obligations of the other.
4. If any of the spouse want to give up a lucrative career, the agreement can ensure that you will be compensated for that sacrifice if the marriage does not last.
5. A prenuptial agreement focus more on the financial aspect of the marriage which cover any of the details of decision making and responsibility sharing to which each party agrees in advance.
6. A prenuptial agreement can limit the amount of spousal support which will have to pay at the time of divorce.

Disadvantage of the prenuptial agreement^[6]

• Deciding to go for an antenuptial agreement is a very difficult and complex step for both the parties.
• The agreement implies that the couples do not envision the marriage did not last forever.
• The agreement can adversely impact life of both the parties post marriage.
• The agreement can enhance the importance of money than the thought of living together for both the parties.
• The agreement can adversely impact the lifestyle of both the parties.

Provisions in a prenuptial agreement that can be overruled by the courts^[7]

• Agreements that promote or encourage divorce/separation.
• Mention of spousal waivers
• Waivers of counsel fees, temporary alimony and permanent alimony
• Agreements that do not support child custody, child support and maintenance
• Regulation of conduct during marriage
• Agreements that mention religious upbringing of children
• Enforceability of no child provisions
• Limiting the grounds for divorce
• Agreement comprising of provisions requiring the spouses to marry
• Severability

References

^[1] https://blog.ipleaders.in

^[2]  http://www.legalserviceindia.com/article/l284-Pre-nuptial-agreements.html

^[3] Helplinelaw – http://www.helplinelaw.com/family-law/PRENAI/prenuptial-agreements-in-india-an-overview.html

^[4] https://india.findlegalforms.com/product/prenuptial-premarital-agreement-india/

^[5]http://family.findlaw.com/marriage/pros-and-cons-premarital-agreements-prenuptials.html

^[6]http://www.helplinelaw.com/family-law/PRENAI/prenuptial-agreements-in-india-an-overview.html

^[7]http://www.helplinelaw.com/family-law/PRENAI/prenuptial-agreements-in-india-an-overview.html