This article is written by Ritika Sharma, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com.
Prenuptial agreement (prenup) is an agreement of western origin which is gaining its position in other parts of the world. In its classical western ideological sense, the agreement is portrayed as a precautionary measure that safeguards the assets of both the parties. It is in this aspect the author tries to analyse the development of the concept of a prenuptial and its effect on marriage in its modern sense. In the era of modern family, every moment relationships make and break in fractions of seconds. It is also seen that citizenship of various nations is gained by way of marriage as it has become an easier option.  The meaning of marriage in this era is not that if a social institution but a relationship between two individuals through an agreement, just like a contract.
Pre-nuptial agreements can be called an agreement to validate the account of marriage. Basically this agreement was a western concept, but now it is gaining momentum in the east as well. Prenuptial agreement, is an agreement before the marriage, entered by the parties intending to enter the union of marriage. This is done to ensure that after marriage all the assets of both the parties are divided. But the notion of pre-nup stands in-between many concepts of family law, contract law, economics, feminism, and public interest. 
This article would deal with the following questions:
- Are pre-nuptial agreements valid in India?
- What stand does the Indian and UK laws maintain?
- What are the implications of pre-nuptial agreements?
Existing legal position
A prenuptial agreement is between two spouses. It is essentially a settlement in writing between the two spouses which states that on death or divorce or separation what will be the financial liability of the respective spouses. In simple phrases it lays out the proportion of assets, property, and money each of them gets if the wedding is dissolved.
It is a very popular concept in the West, where celebrity couples like Tom Cruise – Katie Holmes and Michael Douglas-Catherine Zeta have opted for pre-nuptials. Where Katie Holmes claims whooping 3 million dollars for every year the marriage survives and Catherine is entitled to receive 5 million dollars on charges of infidelity against Michael Douglas .
Prenuptial Agreement in India seems like an alien idea. Unlike western countries wherein marriage is taken to be a contract between husband and spouse, in India marriage is taken into consideration as a holy alliance of two persons for existence and for this reason, a prenuptial settlement is legally invalid under the Hindu Marriage Act in India.
Divorce laws in India are governed by the personal laws – Hindu Marriage Act, 1955, Indian Christian Act, 1872, etc. Provision for maintenance exists in all matrimonial laws with the only dissimilarity that under Hindu Marriage Act, either of the spouses can claim maintenance, but under others only the wife can claim maintenance. Generally, alimony is granted based on income, property of both the parties and their conduct. It may not always be possible to prevent a divorce, but a prenuptial agreement would ensure that one would get the rough end of the stick in matters of financial settlements.
- CONTRACTUAL POSITION
Many countries like Canada, Italy and France have matrimonial regimes along with pre-nuptial agreements. While India does not have a specific statute governing pre-nuptial agreements, even then if such pre-nuptial agreement were to be considered in India, it would fall under the ambit of Indian Contract Act, 1872. As under Section 10 of the Act, 1872, states that agreements are to be considered contracts if they are made by the free consent of the parties . However, section 23 of the same Act would declare prenuptial agreement void on the grounds of it being against public policy and immoral. It must be emphasized that prenuptials are only considered to be ordinary agreements in India. Goa is the only state where prenuptial agreements are enforceable because it follows Portuguese Civil Code, 1867. Under Special Marriage Act, 1954, if all necessary documents (under the act) required for declaration of marriage are registered at the Registrar’s office, then prenuptials can be legally binding.
It is to be noted that since prenuptials are not enforceable in court of law, many people lose interest. But a few insist on having an agreement signed up, mostly because they do not want to jeopardise their assets. The document may not provide for a clear division of assets but may simply be a way to pre-determine the maintenance provisions and custody decisions.
However, the terms and conditions in these documents must be “reasonable” enough for the courts. For example, if the agreement says that after separation the child would be in custody of only one parent and would not be allowed to meet the other, it would not be entertained in the court on the grounds of violation of public policy. Also, if a fortune 500 business tycoon’s marriage breaks down within a few months, each party would not walk away with 50% of the total estate.
In case a woman gives up her legal rights in the agreement, the court would strike off such an agreement. This is because an agreement in which a party gives up their right to legal remedies is void.
Violation or breach of a prenuptial agreement which has been notarised and stamped can welcome an offence of fraud. And fraud is a ground for divorce under the Hindu Marriage Act, 1955.
In the United States, there is a provision of the Uniform Premarital Agreement Act, which has been adopted by 27 states (until July 2018). Prenuptial agreements have no legal sanctity in India. This is because of the differences in the definition of marriage itself — marriages in the US are regarded as contracts entered into by equal parties, whereas the law in India views them primarily as a sacrament.They are also looked down upon by Indian courts because they are usually made by rich husbands, so that in case of a possible dissolution they don’t lose out on their money. The idea of a prenuptial agreement, which accepts the possibility of a separation, would thus strike at the very heart of that definition .
In the landmark case of Bhagwati Saran Singh vs. Parmeshwari Nandar Singh , the Allahabad High court held that marriage in addition to being a sacrament is a civil contract entered into between two parties.
The legal status of prenuptials in England was also uncertain until recently whereby they accepted it to be legally valid. In the case of Radmacher vs. Granatino , the court said that prenups do not hit public policy arguments if they are mutually and voluntarily entered by the couple. This judgement redefined the phrase ‘public policy’. The Supreme Court set out three factors that would increase the likelihood of prenuptial getting accepted legally in the court. They are as follows:
- The agreement must be freely entered into by both the parties;
- The parties must have a full apprehension of the implications of the agreement; and
- It must not be unfair to hold the parties to their agreement in the circumstances prevailing.
It was a historic judgement, and after this case the number of prenuptial agreements saw a steep rise not only in England but also Germany. This ruling has been further underlined in the case of WW v HW . However, even as case law continues to support it, prenuptial agreements are still not legally binding and there has not been much development on the Law Commission’s proposals of a “qualifying nuptial agreement” made in 2014.
In Mohammedan law the idea of pre-nuptial prevailed even before the popular westerns adopting it. As most Muslim marriages involve the negotiation of a mahr provision as part of a marriage contract which consists of a monetary payment from husband to wife, so the notion of Mahr, under Mohammedan law, as defined by Tyabji, “Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by an agreement between the parties, or by operation of law ”. In the case of Akileh v. Elchahal , considering the validity of mahr as a prenuptial agreement, the Appellate Court provided that–“a marriage is sufficient consideration to uphold an antenuptial agreement” and therefore, the contract between the parties was valid and enforceable.
Conflict of laws
The Divorce Act, 1869 under Section 40 speaks about ante-nuptial and postnuptial agreement but it is subject to the decree of the court. The court may make such orders with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or the children (if any).
Therefore, even where the court has held that Hindu marriage is not only a sacrament but also a civil contract (Bhagwati Charan Singh v. Parmeshwari Nandar Singh), the Supreme Court has emphasised that the object of a contract cannot be marriage.
Prenuptials are treated as unenforceable agreements since either party may be required to sign away the right to legal remedy in the division of the marital estate after the dissolution of marriage. Under Section 28 of the Contract Act, any contract “by which any party thereto is restricted absolutely from enforcing his/her rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals” is void.
Comparison with English laws
At present, English laws do not fully recognize prenuptial agreements. In S v. S  it was noted by Justice Wall that although English does not fully recognize prenuptial agreements, but they may be considered in accordance with the factual circumstances of the case. Also, prenuptial agreements will not be taken as the “sole consideration”, while they can be relevant considerations in cases of division of assets and financial provision. In F v. F , Thorpe J. stated that a prenuptial agreement must be “of very little significance” since the distribution of assets must take place in accordance with statutory formula and “cannot be much influenced by contractual terms.”
Likewise, in N v. N  (Jurisdiction: Prenuptial Agreement) the court refused to enforce even a portion of a prenuptial agreement in which the husband had agreed that, in the event of a divorce, he would take all necessary steps to allow his wife to obtain a “get,” allowing her to remarry under Jewish law. The court held that “even if one divides up the ante nuptial agreement in this case, and looks at the individual clauses separately, one cannot, in my judgment avoid the fundamental proposition that each is part of an agreement entered into before marriage to regulate the parties’ affairs in the event of divorce. The public policy argument, therefore, continues to apply .” For an agreement to be enforceable in the court of law, it must not be overriding with Section 25 of Matrimonial Causes Act, 1973, which says that “have regard to all circumstances of the case”.
There is no specific statute for prenuptials and so their status has been determined by case laws – most notably the landmark case of Radmacher v. Granatino. The English courts have been very unpredictable in their stand. In 2016, a woman was asked by the court to get a job instead of living off maintenance from her ex-husband. In 2017 a man was asked to increase maintenance given to his wife after 15 years of separation and their son had reached adulthood and she had been awarded all liquid capital at the time of initial financial settlement.
So, to summarize, prenuptial agreements are not legally binding in India. Indian laws and the legal system being foster children of English common law must pay due attention to this radical verdict.
Some couples may have difficulty while approaching the subject of prenups. Many people wrongly assume that a conversation about prenups will defeat the purpose of getting married. However, it is likely to increase confidence in the other spouses’ intentions. Prenups can protect individuals from entering a marriage in which one spouse is trying to gain financial security by marrying the other.
First of all, it is one of the most economical solution, thinking about the divorce price or any type of legal costs relating to adoption or maintenance via a court; secondly, parties have the freedom to include terms and conditions which would suit them and would also be mutually decided; thirdly, it is a stress-free system rather than going through the court proceedings; and finally, it maintains a test on misrepresentation made through either spouse and decreases opportunities of fraud and consequently spouses can escape from such sour experiences. It would also help to take a financial decision right before marriage and helps the couple in becoming more aware of how each spouse views the other’s responsibility in marriage.
But still public opinion stands as a huge challenge as in India wondering that marriage will not survive before stepping into it, is far a taboo and for this reason considered to be against the public policy. As of now, prenuptials do not have any validity in India. Yes, two parties can sign an agreement before stepping into a marriage, and the courts will apprehend the settlement if both the parties together conform to it and sign it without external strain, affect or force. But all it is going to take is one party’s allegation and the settlement can fall apart, leaving the individuals in a judicial loop.
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