In this informative blog, we have penned everything you need to know regarding Prenuptial Agreement. Continue reading to learn the ins and outs of a Prenup.
A prenuptial agreement before the wedding is the way to go in wealth or sickness. With divorce rates on the increase, prenuptial agreements are no longer regarded as insulting or unromantic ideas. In Australia, 60 percent of people are willing to sign a legally binding agreement before saying “I do”. Since 2017, 63 percent of divorce lawyers in the US feel there has been a rise in prenuptial agreements.
Prenuptial agreements are highly prevalent in other countries but aren’t often accepted in India. First of all, divorce carries a significant societal stigma. Furthermore, such agreements seem like commercial transactions, and couples are hesitant to participate in such contracts. The majority of people believe that such agreements are only available to the wealthy. However, they are far more prevalent than that. A prenuptial agreement will spare you from a redundant intricate divorce fight.
Prenuptial Agreement: What Is It?
A prenuptial agreement or “prenup” is basically a contract drawn into by the couple before their marriage. It’s a written, recorded, and notarized agreement that generally defines the allocation of belongings and obligations, as well as concerns associated with child custody if the wedding disintegrates in the future.
A prenup is a formal non-verbal contract witnessed and signed by both parties that lists the objects brought to the wedding and those presented to the couple.
The principal terms of a prenuptial agreement address topics such as child custody, the distribution of assets obtained individually or jointly at the time of the wedding, the division of responsibilities related to child care, establishing an upper restriction of alimony, and so on.
Prenuptial Agreement: Is It Legal in India?
Prenuptial agreements are not yet recognised as legal contracts in the legal system of India. There’s currently no definitive legislation regarding prenuptial agreements in India. There are four perspectives on prenuptial agreements in India:
- They are regulated by contract law rather than marriage law. Section 10 of the 1872 Indian Contracts Act requires the same conditions as any other agreement.
- The opposing viewpoint holds that prenuptial agreements are opposed to public policy and, therefore, invalid under the Indian Contracts Act (Section 23).
- Some regard prenuptial agreements as just a memorandum of understanding that is not legally binding on the couple.
- If the wedding is officiated as per the Special Marriage Act, prenuptial agreements can be regarded as binding if they are filed to the registrar with other documentation.
In the middle of the discussion over the legality of prenups, consideration must be given to the emotional feasibility provided by such contracts.
Prenuptial agreements are viewed as a sign of distrust or a lack of dedication among partners, yet they do help to resolve property and financial issues.
Although prenuptial agreements can’t be enforced legally because they simply reflect the couple’s desire, courts regard the direction of prenuptial agreements when issuing judgments.
Why Should You Have a Prenuptial Agreement?
Divorce rates in India are increasing dramatically as a culture. When financial insecurity is combined with emotional suffering, things may quickly spiral out of control. A prenuptial agreement is a good idea since it protects the parties’ interests and can shield you against unanticipated events and excessive divorce payouts.
A prenuptial agreement might help you eliminate confusion about property split following divorce. Courts in India would consider a prenuptial agreement lawful only if both parties consented to it and signed it willingly, without any undue influence, threat, or force.
While drafting a prenuptial agreement, it is critical to put your emotions at bay. You must consider the following reasons for getting a prenuptial agreement:
- The majority of Indian laws favour women, while the government pays little consideration to men’s financial circumstances. As a result, having a prenuptial agreement guarantees that both parties’ rights are protected.
- Prenuptial agreements can also be used to prevent charges under the Domestic Violence Act (Section 498A).
- There is no mathematical rule in the nation that determines the amount of alimony. Alimony is normally decided at the court’s discretion. When determining maintenance, the court may take into account criteria like the spouse’s income, the level of living, the applicant’s behaviour, and so on.
- By establishing a prenuptial agreement, you may settle on an amount ahead of time and strive for an equitable distribution that is beneficial to both parties. It also makes sure that both parties are relieved of the burden of one another’s financial obligations following the dissolution.
Additionally, costly advocate expenses can be avoided.
Things You Must Know about Prenuptial Agreement
Here are some facts concerning prenups that everyone should be aware of:
- The Basics: A prenup is basically a private contract between both parties made before they marry that specifies how their belongings will be divided in the case of death or divorce. Every state has its set of rules for enforcing and validating prenups. Which state’s law applies hinges on where the wedding took place, the residence of the couple throughout the wedding, and what law the spouses agree to apply. Often, partners in this scenario may look for state legislation that’ll be most helpful in carrying out the requirements of the prenuptial agreement.
- Fairness Matters: Most states require that the contract be fair, that the parties fully disclose their belongings, and that each party retain their personal lawyer.
- Circumstances Dictate Fairness: The concept of fairness is determined by the specified circumstances and facts encompassing each couple. Is it fair that a wife walks away with just the ₹30 lakhs she contributed to the wedding and no alimony after 20 years of the wedding? Probably unlikely, especially if she has adapted to a new lifestyle and has kids to nurture. It would be in the husband’s interest to give the contract “teeth” – to ensure his wife is appropriately provided for while preserving his belongings.
- Importance of Disclosure: In most cases, the parties must also completely declare their belongings. In many states, it must be stated in the contract. In addition, several states consider each party’s prospective inheritance. The wife may one day inherit money from her father or any of her relatives (who are rich enough), and that anticipated inheritance might need to be mentioned in the prenuptial agreement.
- Children are off the Table: A prenup contract can’t offer for or restrict child rights or child support. Couples cannot negotiate away their kid’s rights in legislatures or courts.
As prenuptial agreements grow increasingly frequent, the law is becoming more accommodating to them. Historically, courts regarded prenups with suspicion because they nearly invariably required a renunciation of financial and legal benefits by a less affluent spouse, and they were seen to induce divorce.
As remarriage and divorce have grown more common and gender equality, legislatures, and courts have become more likely to honour prenuptial agreements. Every Indian state now allows them, albeit a prenup that’s deemed unjust or otherwise fails to fulfill state standards will still be rejected.
Nevertheless, since courts continue to scrutinise prenuptial agreements, you must discuss and draft your prenup agreement in an intelligible, legally sound, and clear manner. If you write up your own prenup agreement, which we suggest, you should have separate attorneys examine it and at the very least brief you on it; or else, a court is considerably more likely to dispute its legitimacy. Vakilsearch, a reputable hub for top-notch lawyers and legal matter experts, can help you in this matter. Contact us to take this alliance forward