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).
[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
[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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