INTRODUCTION
“Pre-nuptial agreement is a legal document between the parties in marriage that is between the husband and the wife before the marriage related to properties, money and custody of children after divorce of the parties.”[1]
“Pre-nuptial agreement ideology came from the western countries like the US, UK, and others, but it has been a new emerging topic in India as many couples want this agreement to be legal in India as well”[2]. It also helps save time and money from the tedious court proceedings for divorce as in the agreement, the amount both husband and wife would pay and receive is fixed, so there is no chance that the wife can demand more alimony than the specified amount.
“Pre-nuptial is also known as Prenup,” and one of the advantages of this is that the husband and the wife could live a less stressful life, worrying less about their finances in the future. This agreement is beneficial because if any of the partners were lying about their status, then it would be clear as they have to write honestly about their financial position in the prenup agreement, and in the future, if situation arises, they have to give the money in the ratio or the amount written in the contract.
PRENUPTIAL AGREEMENT IN OTHER COUNTRIES
Some countries have legalized pre-nuptial agreements, and others have not legally recognized them. Still, the court considers them when the conditions are sometimes fulfilled.
- Australia
“Pre-nuptial agreement in Australia was enforced in 2000”. However, it was accepted by the court only when the prerequisite conditions were met. The parties have to clarify how much amount have to be paid by each. “If the agreement has been executed by deception, coercion, mistake or undue influence, it will not be enforceable. The agreement will not be considered if changes related to children arises or if a party is arranged in an unethical manner, like when one partner is disadvantaged, and the decision goes against the principles of morality”[3]
- France
In France, prenuptial agreements are standard and accepted by most couples. It is known as “Pacte de famille. But there are certain conditions to make it enforceable; they are:
- The agreement must be signed before the notary, which is then registered by the notary under the “Last Will and Testament Act” in France.
- If any injustice in the agreement or inequitable distribution is made, it can be challenged in a court of law.”[4]
- China
A few years ago, “China made prenuptial agreements enforceable under Article 19 of Marriage Law, 2001. It states that the husband and the wife can decide the property they want to divide, whether they want separate possession, or joint possession.”[5] Once the parties sign this document in full consciousness, it would be binding on both of them.
- New Zealand:
In New Zealand, “the prenuptial agreement was legally recognized under the Matrimonial Property Act, 1976.” There was an amendment in 2001 that changed the act name to “Properties (relationship) Act, 1976”[6]. It states that the “husband and wife can decide the division of the property involved in their relationship on the divorce or death of any of the parties.”[7]
So, if there had been any inequitable distribution against any of the partners earlier, it was easy to dissolve that problem and set aside the agreement. Still, after the amendment, it could be set aside only if there is a grave injustice against any parties in marriage.
PRENUPTIAL AGREEMENT IN INDIA
“In India, prenuptial agreement has yet to be legally recognized, but as many young couples use this method, the court can consider it as evidence in the proceedings.”[8] The increasing divorce rates maybe one reason the new generation of couples want to follow prenuptial agreements.
There is no specific section under the Indian legal laws that governs prenup in India, so it is issued under the “Indian Contract Act, 1872”[9]. But as India is a vast and diverse country of different religions, it has other notions about the validity of pre-nuptial agreements. “In Christianity and Islam, a pre-nuptial agreement is considered valid and lawful. Christians are governed by the Indian Divorce Act, 1869, s. 40 states that in the case of separation, if there is an existing prenup, then it should be considered by the court.”[10] And in Muslims, the marriage is a contract and all the property related to both the parties should be discussed beforehand. But in Hinduism, marriage is not a contract but a sacred ritual, and it is considered that before marriage, no one should talk about divorce or death.
Along with this, the “Court also held that prenuptial is against the public policy”[11]. It should be considered void as divorce and separation matters are governed by the personal laws of the particular religion, so it would not be right to pass the judgment under Indian Contract Act, 1872.
In some cases, the court has different viewpoints in considering prenuptial agreements. In the case of “Sunita Devendra Deshprabhu v Sita Devendra Deshprabhu, 2016”[12], Raghunath Rao and Sita entered into a prenup agreement stating the division of their assets. After the death of Raghunath Rao, Sita also died after filing a suit against her daughter-in-law and son concerning the property. “The Court used the Prenup agreement as evidence and stated that Sita and her husband have agreed to the division of assets.”[13]
Another case was “Tekait Mon Mohini Jemadai v Basanta Kumar Singh, 1901”[14], in this case, there was an agreement between the parties before marriage. The prenup states that the husband has no right to take his wife to his house and the wife will stay at her parental home. Both parties were Hindu, so the Hindu Marriage Act was considered. According to this law, the wife must move with her husband and leave her parental house. “The Court said if the agreement will be considered then, it will defeat the provision of Hindu Law, so it was held the agreement was unlawful.”[15]
CONCLUSION
“Prenuptial agreements in India could be a benefit for young couples as it would help them to be more secure about their finances and assets. It would also bring fairness in their relationship as if any of them has lied about their income, it will be revealed in agreement as both the parties have to be fair while preparing this.”[16] But because there are no such law-making prenuptial agreement legal, it is difficult for the couples to make it enforceable in a court of law when the situation arises. The Hindus believe marriage is not any contract that can end at any time but a sacred relationship for life. Talking about divorce and separation before the marriage is not regarded as good. Indeed, marriage is sacramental, but there should be security about the finances for both parties before they marry.
Author(s) Name: Isha Sinha (Symbiosis Law School, Noida)
References:
[1] IndiaFilings, ‘Prenuptial Agreement in India’ (IndiaFilings, 10 September 2021) <Prenuptial Agreements in India ( Advantages & Disadvantages ) (indiafilings.com)> accessed on 15 September 2023
[2] Amrita Ghosh and Pratyusha Kar, ‘Pre-Nuptial Agreements in India: An Analysis of Law and Society (2019) NUJS Law Review < 12-2-Ghosh-and-Kar.pdf (nujslawreview.org)> accessed on 15 September 2023
[3] The Law Office of Jeremy D. Morley, ‘Prenups Around the World’ (The Law Office of Jeremy D. Morley) <Prenups Around the World | The Law Office of Jeremy D. Morley (international-divorce.com)> accessed on 15 September 2023
[4] Matrimilan, ‘Prenuptial Agreements: Legal Implications and Differences’ (Matrimilan) <Prenuptial Agreements: Legal Implications and Differences (matrimilan.com)> accessed on 15 September 2023
[5] The Law Office of Jeremy D. Morley, ‘Prenups Around the World’ (The Law Office of Jeremy D. Morley) <Prenups Around the World | The Law Office of Jeremy D. Morley (international-divorce.com)> accessed on 15 September 2023
[6] Properties (Relationship) Act 1976
[7] The Law Office of Jeremy D. Morley, ‘Prenups Around the World’ (The Law Office of Jeremy D. Morley) <Prenups Around the World | The Law Office of Jeremy D. Morley (international-divorce.com)> accessed on 15 September 2023
[8] Amrita Ghosh and Pratyusha Kar, ‘Pre-Nuptial Agreements in India: An Analysis of Law and Society’ (2019) NUJS Law Review < 12-2-Ghosh-and-Kar.pdf (nujslawreview.org)> accessed on 15 September 2023
[9] Indian Contract Act 1872
[10] Amrita Ghosh and Pratyusha Kar, ‘Pre-Nuptial Agreements in India: An Analysis of Law and Society’ (2019) NUJS Law Review < 12-2-Ghosh-and-Kar.pdf (nujslawreview.org)> accessed on 15 September 2023
[11] Ibid
[12] Sunita Devendra Deshprabhu v Sita Devendra Deshprabhu, (2016) SCC Online Bom 9296
[13] Kishan Dutt, ‘Prenuptial Agreements: Enforceability and Case Laws’ (LawyersClubIndia, 29 April 2020) < Prenuptial Agreements: Enforceability and Case Laws (lawyersclubindia.com)> accessed on 15 September 2023
[14] Tekait Mon Mohini Jemadai v Basanta Kumar Singh, (1901) ILR 28 Cal 751
[15] Kishan Dutt, ‘Prenuptial Agreements: Enforceability and Case Laws’ (LawyersClubIndia, 29 April 2020) < Prenuptial Agreements: Enforceability and Case Laws (lawyersclubindia.com)> accessed on 15 September 2023
[16] Amrita Ghosh and Pratyusha Kar, ‘Pre-Nuptial Agreements in India: An Analysis of Law and Society’ (2019) NUJS Law Review < 12-2-Ghosh-and-Kar.pdf (nujslawreview.org)> accessed on 15 September 2023
