This article is written by Amritha Priya, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com.

Introduction

Pre-nuptial or Post-nuptial agreements are signed either before or after marriage, by the individuals who are married or intend to marry. The former one is signed before marriage and the latter one is after marriage. This agreement normally lays down clauses which would decide in case the parties decide to divorce in future as to how their assets, alimony, custody of child, liabilities would be distributed among themselves in the future. This agreement would ease down the process of litigation in case of divorce.

In this paper I would bring out the difference between marriage and contract/ agreement? Why should this agreement be signed? Why not? Is it important or obligatory to avoid future mishap? Should it be looked at practically or should it be given a sacrosanct value? What are the disadvantages? How to draft a Pre-nuptial or Post-nuptial agreement?  

Difference between Marriage and Contract/ Agreement

The former thinkers of our society have institutionalised marriage with the intention of avoiding social mishaps. Every civilization, customs, religion across the world considers marriage as sacrosanct; it is also seen in few customs that marriage is believed to be a sacrament. When looked at from a legal scenario marriage can be referred to as legal cohabitation of two individuals after acceptance who is of sane mind. That does not mean it shall be equated to a contract. 

A contract is ideally beyond promise, contract generally means ‘agreement which is enforceable by law’ whereas an agreement is ‘a promise or a set of promises which forms consideration to each other’. In simpler words, a contract is a legal document which is enforceable by law, whereas a mere agreement shall not be enforceable. Under contract law, for a valid contract: 

1. There must be an agreement between two or more parties.
2. Such an agreement must be made between parties who are competent to contract (sound mind, majority, not disqualified by law).
3. There should be a lawful consideration and lawful consent.
4. Free consent of the parties.
5. The agreement must not be the one, which has been expressly declared to be void. 

Keeping that in mind, a contract is entered into because it regulates relationships between the parties by outlining their duties, responsibilities both during the continuance of contract and after the expiration of such contract. The contract is required because spoken words cannot be proved in case of further dispute, but if the same has been reduced to writing then it shall stand good in the eyes of law. It should be a registered and a notarized one, thus every contract when registered shall have effect in the eyes of law. 

Coming back to marriage and contract, prima facie all the essential conditions required in a contract are fulfilled in marriage. However, marriage is not a contract because we (humans) live in a civilised society, and the essence of a civilised society is emphasizing law. Under law marriage or a solemnization means legal union of two individuals who agree to cohabit with each other, through all odds of life. This is essentially a promise, which is normally not backed by an agreement. In case of any unavoidable interruptions, such solemnization could be sorted legally. This can be through divorce. Divorce was not recognised earlier, however recognising the importance the concept has been institutionalised. The procedure might be complex due to various reasons. Thus, after the legalisation of Alternative Dispute resolution across the world, the settlement of disputes through this process has eased the litigation norms that had to be met earlier. Apart from this there is also ‘Mutual Consent Divorce’ where the parties can amicably sort out their disputes and negate them accordingly. In India every family dispute is first referred to the Mediation for settlement, and in case the parties do not agree it goes for trial back to the court. Mutual Consent Divorce would not take more than 6 months for settlement. With all these available remedies/ options in hand do you think a prenuptial or postnuptial agreement is necessary? 

Should One Sign This

As discussed earlier, marriage can be dissolved on various grounds in law. Law enables parties to dissolve their relationship both amicably or via its intervention in accordance with PNJ (Principles of Natural Justice) principles. However, it’s the discretion of the party to elect which one he would wish to choose. In mediation both the parties sit together with a mediator, who would facilitate discussion between them. In mediation the parties if they are keen in getting divorced then, they resolve questions on Asset and liability, Custody of Child, Alimony. Once this discussion is sorted the mediator drafts a legal document, and thereafter that is read and explained to them, which is sent back to the court for judgement. The clauses discussed with the mediator at this stage is the same clause that a prenuptial or a postnuptial agreement would deal with. Likewise, in case of Mutual Consent Divorce more or less the same procedure is followed, whereby the attorney would facilitate the process. If the parties are keen to settle their dispute then they can use these provisions which are quite feasible. 

A marriage which is sacrosanct in nature need not be reduced to writing, keeping in mind the future mishaps. If any dispute arises in the future they can be settled amicably with the availability of law. Thinking one might arise in the future and entering into a contract will make the solemnization merely contractual and not a sacrosanct. This would directly hit the roots of civilization leaving behind or-repairable damages, as there are more changes of misusing. It is the sole discretion to either sign one or not. However, I will share ideas on how to draft and what are the essentials to keep in mind while drafting a prenuptial or post-nuptial agreement. 

Essential to be Kept in Mind while Drafting

1. They will be valid only when both the parties are transparent about their assets and liabilities. 
2. It is advisable to sign before marriage.
3. Each of them must have a separate counsel while drafting.
4. The agreement must talk about the liability/ custody of the child.
5. The agreement must have clauses pertaining to division of assets incurred during the solemnization of marriage. 
6. Alimony that has to be given.
7. Indemnity clause, whereby one party shall not be responsible for the other party’s debts. 

Drafting of Prenuptial Agreement

Prenuptial Agreement

This agreement is made and entered on this DAY of MONTH and YEAR (hereinafter referred to as effective date) 

BETWEEN 

Mr. A, son of Mr X, residing at, hereinafter referred to as Party 1 

AND

Ms. B, son of Mr. Y, residing at, hereinafter referred to as Party 2

WITNESS AS FOLLOWS: 

RECITAL clause: Add the description/ background of the contract. Why is this entered into? When shall this be effective? Reasons for the same? Children by previous marriage? 

NOW THIS AGREEMENT FURTHER WITNESSES AS FOLLOWS: 

1) DEFINITION CLAUSE: The definition of certain terms like wedlock, effective date, mode of execution can be defined. 

2) DISCLOSURE OF PROPERTY: The individual/ self-acquired property and ancestral property shall be disclosed, details regarding the same shall be disclosed. Also, intangible assets if any shall be disclosed along with their details. The details of any investments made earlier, including any premiums or policy investments or shares etc. 

3)  DURING MARRIAGE: If any investment made, loans taken, property acquired by them in the course of marriage, then how shall that be divided in case of divorce. Should it be given as alimony, or Should be registered on the name of the child etc. In case if either party is not-competent to marriage, then how should that be handled. In case if either party is declared insolvent, in case either party commits an offence or adultery then what would be the consequences?  

4) CUSTODY OF CHILD: In case of divorce who shall take responsibility for the child. How will the responsibility be shared by each of them?

5) JOINT ACCOUNT: How to resolve the income/ credits through this joint account. Should it be sorted judicially? 

6) ALIMONY: On what grounds should the alimony be decided. Who shall pay the alimony? How much to be paid? In case both of them are working should alimony be paid? 

7) EFFECTIVE DATE: When shall this agreement be effective? How shall this be executed? 

8) INDEMNIFICATION: That each of them shall indemnify each other debts. How? Can be added here. 

Conclusion

It is advisable for NRI to not enter into a Prenuptial agreement or a Postnuptial agreement because there are various other remedies under law like mediation or negotiation. Hence, rather thinking something might happen in future and to ease the process that might crop up then, it’s better to adhere to the sacrosanct sacrament that is prevailing in the society. 

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