PRENUPTIAL/PREMARITAL Agreements may be India's future law

what is Prenuptial agreement or premarital agreement ?

A prenuptial agreement is a contract between two individuals who are about to get married, outlining the state of finances and personal liabilities in case the divorce .

 

 is Prenuptial agreement or premarital agreement  valid in India ?

In India, no one thinks of divorce a time of solemnizing of a marriage,in India  premarital agreements are neither legal, nor valid under the laws of marriage because they do not consider marriage to be a contract. A marriage is considered as a religious bond between spouses and prenuptial agreements do not gain social acceptance. in India Prenups are considered against public policy. It cannot be valid according to Indian Contract Act, 1872 Section 23 which states:

“The consideration or object of an agreement is lawful, unless – it is forbidden by law; or is of such nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another or; the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.”

. It is governed by law of contract and not by Hindu Marriage Act or any other statute relating to marriages or personal laws. The provisions of Section 10 of the Indian Contract Act, 1872 would apply to the contract as it would to any other type of contract in order for it to be valid.

various High Courts has ruled that prenuptial agreements are non-executable and invalid.

countries where prenuptial agreements are legal.

 Finland, France, Greece, Portugal, Spain, South Africa, Sweden, Russia, Taiwan, Thailand,Australia, Canada, Brazil, China and the United States Virgin Islands have made prenuptial agreements enforceable in their countries.

essentials  of the agreements ?

The countries that have legalized prenuptial agreements have rules and regulations that govern the legality and enforceability of the agreements. essentials  of the agreements are:

a) A prenuptial agreement must be in writing. Oral prenups are not valid.

b) The agreement should be mutually agreed upon and duly acknowledged by both parties.

c) Consent of the parties should be free of undue influence, fraud, misrepresentation, or cohesion. A prenup signed a day before marriage can be invalidated by the court.

d) Both parties should sign with proper legal representatives, preferably in front of witnesses or notary.

e) The clauses in the agreement should be reasonable. It means that both parties should be benefited equally.

Why Prenuptial agreement may be India's future law?

As divorce litigation is rising in India day by day, with one matrimonial dispute comes along with number of cases in courts like maintenance 125 crpc, sec 9,divorce 13 hma, domestic violence case,child custody and other cases with regards injunctions or etc. 

where as  Prenuptial agreement can help protect the interest of the parties and save both from any unforeseen circumstances and ugly divorces and unwanted litigation . One of the most important advantages of prenup is that it forces couples to have a financial discussion before the marriage. Some of the other reasons are listed below for opting for prenup:

1. facing expensive litigation  during divorce settlements can add to the financial drain of the party. The prenup saves both the parties from expensive litigation.

2. A prenup can save both the parties from carrying on each other’s financial obligations post marriage.

3. The properties owned by the parties can be divided peacefully during divorce proceedings through a prenup. It reduces uncertainty of division of property at the time of separation.

4. The alimony or maintenance is not calculated by the Court but is decided by the parties in the prenup.

5. It reduces the chances of appeals in the court as both have already safeguarded their interest through the agreement

as there is rise Indian divorce litigation soon India could opt this law in future