Prenuptial Agreements: Legal Position on enforceability in India

The author of this blog is Anushka Agarwal, 3rd year, BBA LLB (H.) Corporate Law, University of Petroleum and Energy  Studies, Dehradun.




Prenuptial Agreements are commonly referred to as “premarital agreements” or “antenuptial agreements”. These are the written agreements that are executed before marriage between the people who intend to marry or ready to tie the knot with each other. This agreement includes details about the distribution of the assets or property, division of liability, maintenance and alimony post-dissolution or marriage. The essence of such agreements is fairness and mutual understanding. It helps in avoiding the financial disputes between the partner post to divorce by pre-determining the state of personal assets and liabilities. Currently, these agreements are considered to be one of the necessary tools in marriages where metaphorically speaking divorce takes place faster than marriages.[1] However, the concept of prenuptial concept is an alien concept in India because India is rich in its culture, and executing a prenuptial agreement would indicate anticipation of separation and encourage divorce in the future which is against Indian customs and traditions. Unlike, in other countries like Italy, France, Belgium, Germany etc. marriage is contemplated as a contract between a husband and a wife. It is also a recognized concept in America, there is a Uniform Prenuptial Agreement Act (UPAA) which regulates and governs all the prenuptial agreements.
Legal Analysis of Prenuptial Agreements
The prenuptial agreements have always fraught discussion regarding their enforceability and validity because it symbolizes mistrust and lack of commitment among partners. The government has been reluctant in recognizing the prenuptial agreements by considering them as an “urban concept”. Therefore, the legal status of such agreements is uncertain and a grey area. So it becomes vital to understand the enforceability of the prenuptial agreements.

Prenuptial agreements under Indian Marriage Laws
India does not have a Uniform Civil Code except in Goa due to which all marriages are governed as per the Personal Laws of the individual. Marriages have a sacred status ascribed to them which make it strenuous to ponder them in contractual terms.[3] In Hindu law, marriage is a sacred tie and lasts till ten sacraments that can never be broken.[4] Hence, prenuptial agreements are contrary to Hindu law because marriage is considered as an unbreakable holy union whereas, prenuptial agreements envisage divorce. Further, in Muslim law marriage is seen as a civil contract and a religious sacrament.[5] However, in Christian law, every marriage is a natural contract instituted by God and sacred. Marriage is also rendered as perpetual and indissoluble by the Council of Trent.[6] Therefore, the presence of a sacramental character in marriage laws in India makes the prenuptial agreements void. It is also to be noted that Goa has a Uniform Civil Code which makes the prenuptial agreements enforceable under the Portuguese Civil Code, 1867.[7]
Nevertheless, the judiciary has changed its view regarding prenuptial agreements from time to time. In the case Tekait Mon Mohini Jemadai v. Basanta Kumar Singh the Hon’ble Court stated that prenuptial agreements are only inconsistent with the theory of the relation between husband and wife according to the Hindu Law, but against public policy.[8] Although in Sm. Sandhya Chatterjee vs. Salil Chandra Chatterjee it was held that the terms of the prenuptial agreement was in the beneficial interest of both because of which such an agreement was enforceable and not against public policy.[9]

Prenuptial Agreements under the Contracts Act, 1872
The prenuptial agreements are enforceable under the Contracts Act, 1872, if they fulfil all the essentials of a valid contract. All contracts are valid if they are entered in the agreement by mutual consent, for valid consideration, for a lawful object, by competent parties and not expressly declared to be void.[10] Correspondingly, if the prenuptial agreements are executed without coercion, undue influence, misrepresentation or mistake but voluntarily and mutually they will be enforceable. However, the prenuptial agreements will be void if the terms of such agreements are against public policy.[11] There is no certain definition of a public policy due to which the judiciary has the power to interpret what is considered as against public policy. Judiciary analyses each prenuptial agreement according to its terms and conditions but it has been seen in few precedents that provisions regarding child custody are declared to be against public policy.[12] Furthermore, any terms that affect the rights of the individual who are not parties to the agreement [13] and any clause with regard to the separation or no child clause is also not enforceable.

Pre-requisites of Prenuptial agreements
In India, there is no proper law or guidelines provided by the state that prescribes a certain format of the prenuptial agreements. The contents and terms of the agreements differ from each other. This makes it important to understand the prerequisites that are to be kept in mind to make a prenuptial agreement enforceable. In this section, we will be discussing the conditions that make a prenuptial agreement more likely to stand out.
1.      The Agreement should be fair and duly acknowledged.
2.      The Agreement should have attorney certification from both parties as well.
3.      The Agreement should have a clause stating that if any provision of the agreement is invalidated, the rest of the agreement still remains in effect.
4.      There should be a listing attached showing each spouse's assets and liabilities.
5.      The Agreement should have all the clauses of agreements arrived at between the prospective spouses.
6.      The Agreement may also contain the necessary history of the proposed alliance.
7.      The Agreement should be reviewed by separate lawyers and duly certified by them.
8.      The Agreement should be setting out each party's assets, debts, and property rights before the marriage, settling issues of division of property and of spousal support in the event of marriage breakdown.[14]

Conclusion
In modern times where marriages may also end with a divorce, it is advised to have a prenuptial agreement. However, they do not have any legal backing by the marriage laws but they are known as a valid contract if it complies with all the prescribed conditions. It is suggested to make amendments in the Special Marriage Act, 1954 in order to give legal sanctity to these agreements. This act does not recognize marriage as a sacred union but requires a lot of documents and follows a rigid process to solemnize a marriage like an issuance and publication of the notice. Consequently, the couple who wish to pre-determine their rights prior to marriage through prenuptial agreements may get their marriage registered under the Special Marriage Act, 1954.



[1] Rishabh Tiwari, Prenuptial Agreements in India, 2018, Available at: http://ijariie.com/AdminUploadPdf/Prenuptial_Agreements_in_India_ijariie9107.pdf (Last visited 06/08/2020).
[2] UNIF. Premarital Agreement Act, 9C U.L.A. 48 (2001).
[3] Supra Note (i).
[4] Nature of Marriage under Hindu Law, Available at https://www.toppr.com/guides/legal-aptitude/family-law-II/nature-of-marriage-under-hindu-law/  (Last visited 06/08/2020).
[5] Aniz Begum and Malik Muhammad Istafa Wali Khan (1933)55 AP 743.
[6] Marriage: Its Nature and Qualities, Available at: https://catholicharboroffaithandmorals.com/Nature%20of%20Marriage.html(Last visited 06/08/2020).
[7] Shivani Pahuja, Analysis of Section 10 of the Indian Contract Act, 187, Available at: https://blog.ipleaders.in/analysis-section-10-indian-contract-act-1872/ (Last visited 06/08/2020).
[8] (1901) ILR 28 Cal 751
[9] AIR 1980 Cal 244.
[10] Section 10 of the Contracts Act, 1872.
[11] Section 23 of the Contracts Act, 1872.
[12] Alves v. Alves, 262 A.2d 111 (D. C. 1970).
[13] Edwardson v. Edwardson, 798 S.W.2d 941 (Ky. 1990); Rogers v. Yourshaw, 448 S.E.2d 884 (Va. Ct. App. 1994).
[14] Pre-nuptial agreements, Available at: http://www.legalserviceindia.com/article/l284-Pre-nuptial-agreements.html  (Last visited 06/08/2020).

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