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Validity of Prenuptial Agreement in India | Prenuptial Agreements India

Prenuptial agreements are a type of contract that is entered between the partners before their marriage. The agreement sets the conditions under which the assets of the parties will be duly distributed in case of the marriage separation, with the intent to safeguard the financial interests of both parties and to protect the interest of the children. Although prenup is a common trend in Western Countries, In India the acceptance of prenup is still an alien concept due to the social structure and the way marriages are arranged.

In terms of legality for prenup agreements in India, the Legal System doesn’t officially recognize prenup agreements as Marriage isn’t a contract. Marriages in India are governed by personal laws, The Hindu Marriage Act 1995, doesn’t recognize marriage as a contract. Muslim and Christian marriages come under a certain extent as a contract, however, due to the divorce proceedings and hearings the party might not be able to get a huge alimony payout as compared to having a pre-nuptial agreement in place. However, a party can enter into a contract agreement under the Indian Contract Act 1872, where the contract is entered mutually as a written agreement and signed by both the parties without duress, force and coercion and doesn’t contain any clause that is deemed to be unlawful and invalid, under the rule of law. The agreement should clearly state the financial aspects in terms of assets, property division, liabilities that will be undertaken, child support, and others. Based on case to case, the court might recognize the prenup agreement that the parties had entered into.

Goa is the only state in India that recognizes prenuptial agreements as personal laws aren't applicable due to the Goa Civil Code. Under the provisions of the Communion of Assets Law, the wife has equal ownership of her husband’s property. Both movable and immovable property is divided equally between the husband and the wife, with each getting 50 % of it in case of divorce. However, a prenuptial agreement defining what each spouse could claim as his or hers at the time of divorce can be drawn between the couple.

What does a Prenuptial agreement consist of:

  • Assets and liabilities of the couple.

  • List of properties

  • Details of shared assets

  • Division of assets

  • Maintenance allowance

  • Children’s custody and expenses

  • Life insurance, medical insurance, other insurance policies.

  • Individual, joint bank accounts,

  • household expenses and bills

  • Jewellery and gifts, etc.

Format of Prenuptial agreement:

Prenuptial agreements do not have any specified or structured format and can be tailored according to the particular needs of couples, but there are certainly few things that individuals must take into consideration while framing a prenup agreement:

  • Agreement must fulfil all the requirements under section 10 of Indian Contract Act ,1872 to be a valid legal document.

  • Agreement must be duly signed by both the parties forming it.

  • Agreement must mention the assets and liabilities of both the spouses.

  • Agreement must mention the severability clause that if any provision of the agreement is declared to be void all the other provisions will prevail.

  • Agreement should set each spouse's right and ownership in joint things right before the marriage.

When can a prenuptial agreement be overruled by the court ?

  • If the agreement or any provision of the agreement encourages divorce or judicial separation.

  • If the agreement or contract or any provision mentions a spousal waiver.

  • If the agreement or any provision of the agreement waives permanent or temporary alimony or counsel fees.

  • If the contract or any provision of the contract waives child custody, child maintenance and support. If the contract or any provision of the contract mentions regulation of conduct during the marriage. If the agreement or any clause of the agreement mentions the religious upbringing of the children,

  • If the contract contains a no-child provision.

  • If the contract limits or decides any ground of divorce.

To summarise, A prenuptial agreement can be enforced and recognised in the court as long as it is in adherence to Section 10 of the Indian Contract Act, 1872.


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