April 14, 2019:
In India, since marriage isn't considered a contract, it is very rare that you'll see or hear a couple getting a pre-nup.
Unlike western countries where marriage is taken to be a contract between husband and wife, in India marriage is considered as a religious alliance of a man and a woman for life and thus a prenuptial agreement is legally not valid under the Hindu Marriage Act, 1955 in India, however it is governed under the Indian Contract Act, 1872.
In India, since marriage isn't considered a contract, it is very rare that you'll see or hear a couple getting a pre-nup.
However, in case of divorce or separation both the spouses, struggle with the hearings of their case in court, hurling accusations on each other, pinning the blame on the opposite party, all so that the person may get to pay less amount of money as alimony and it is here that the importance of a prenuptial agreement comes into play.
Now everyone has heard about a prenuptial agreement between a husband and wife.
- Disclosure of assets and liabilities - Financial or monetary position - Real estate properties - Shared properties - Division of properties - Separate properties - Alimony or maintenance - Child custody & Maintenance - Life insurance, Medical insurance, Claims - Management of bank accounts or joint accounts Management of household expenses, bills, etc - Gifts in the form of jewelry, engagement ring, precious wedding bands, art, etc.
The prerequisites for a pre-nuptial agreement are -
1 The prenup should be fair, reasonable and duly acknowledged. 2 The prenup should be certified by attorneys of both the parties. 3 A list of assets and liabilities of both the spouses must be attached along. 4 A clause that states that even if a certain provision is null and void, the other provisions would still hold legal and valid, should be mandatorily be covered in the prenup. 5 The prenup should contain details of the agreed issues like maintenance/alimony, division of assets and liabilities in case of dissolution of marriage that both the parties have decided together.
Everything has its pros as well as cons, so does a pre-nuptial agreement, let's understand one by one:
The advantage of having a prenuptial agreement is that it creates a clear-cut reference on the liability both partners hold in case of a Divorce or Separation. 1) Protection of rights of children as well as grandchildren from a previous marriage. 2) Protection of assets or interest of either of the spouse who is self employed or a practitioner, from another spouse’s control in case of separation or divorce. 3) Protection of one spouse who has no debts or liabilities, from taking up the burden of liabilities/ debts of his/her spouse. 4) In case of divorce the maintenance or settlement received can be decided in advance, thus saving the spouses from the trouble of going to the court and fighting a legal battle.
Although by law there are no downsides of a prenuptial agreement however it is still a social stigma in India and creates a negative impression in the mind of people as they think that the couple has already thought that their marriage won't last.
The prenuptial agreement may create soreness between the marital relationship of husband and wife if only one spouse insists for it, as Indians consider marriage to be above materialistic aspect of life.
Despite a prenup being a valid contract there are certain clauses in a prenup that can be nullified by a court viz clauses that
1) Encourage dissolution of marriage 2) Enforcing 'No Child' provision (if any) 3) Specify a certain Religious upbringing of children 4) Contain waivers with respect to Spousal support or maintenance both temporary or permanent, counsel fees, child custody or child support and maintenance 5) Require for a certain conduct during marriage 6) Cap the grounds for getting a divorce
If You Don't Make a Prenup
If you don't make a prenuptial agreement, your state's laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) State law may even have a say in what happens to some of the property you owned before you were married.
Under the Muslim and Christian laws, marriage is largely considered to be a contract between the marrying couple, and with that contract comes certain automatic property rights for each spouse. For example, in the absence of a prenup stating otherwise, a spouse usually has the right to:
- share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death
- incur debts during marriage that the other spouse may have to pay for, and
- share in the management and control of any marital or community property, sometimes including the right to sell it or give it away.
If these laws -- called marital property, divorce, and probate laws -- aren't to your liking, it's time to think about a prenup, which in most cases lets you decide for yourselves how your property should be handled.
Sample Pre-Nup Agreement
________________________________________, hereinafter referred to as Prospective Spouse 1, and _______________________________________, hereinafter referred to as Prospective Spouse 2, hereby agree on this _____ day of ________________, in the year ______, as follows:
I HAVE READ THE ABOVE AGREEMENT, I HAVE TAKEN TIME TO CONSIDER ITS IMPLICATIONS, I FULLY UNDERSTAND ITS CONTENTS, I AGREE TO ITS TERMS, AND I VOLUNTARILY SUBMIT TO ITS EXECUTION. |
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_______________________________
Prospective Spouse 1 |
_______________________________
Prospective Spouse 2 |
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