Prenuptial Agreements in The Era of Millennials: The Indian Perspective

Prenuptial Agreements: As opposed to the traditional Indian belief that marriages are made in heaven and prenuptial agreements are taboo, such agreements allow for a smoother life together since both the parties feel secure.

While some may argue that it takes the love and romance out of the marriage by treating it dispassionately and at par with any business agreement, it has become the most common route taken by couples around the globe to secure their rights and fix their liabilities within the marriage. And yes, it can also be argued that one is entering the union with the presumption that it is bound to end at some point in the future; but for many it is a way to circumvent the trauma they may face during the divorce proceedings and after. It is the instinct of self-preservation that is at the base of a pre-nuptial agreement.

A pre-nuptial agreement is a contract between the parties to an intended marriage/civil partnership that seeks to regulate their affairs in the event that their relationship ends. The contract lays down mutually agreed upon terms and conditions of the would-be couple with respect to the division of their assets, protection from each other’s debts, maintenance, infidelity and child custody in the event the marriage ends. Some contracts even spell out the specific roles and responsibilities of each spouse during the course of their marriage. Ever so often, spouses go into business with each other and the need for a prenuptial agreement becomes even more essential in such circumstances as it would entail a roadmap to how they are to run their business including an exit plan in the event they part ways and decide not to work together.

A pre-nuptial agreement is a contract between the parties to an intended marriage/civil partnership that seeks to regulate their affairs in the event that their relationship ends.

As opposed to the traditional Indian belief that marriages are made in heaven and prenuptial agreements are taboo, such agreements allow for a smoother life together since both the parties feel secure. The would-be couple is encouraged to have a financial discussion before they get bound in matrimony and rule out one of the biggest bone of contentions that crop up – Who pays the bills? Who contributes what and how much? Who gets what and how by the end of it all?  It is decided, signed and registered, binding both the spouses to mutually decided terms and conditions.

Validity and Enforceability in India

The concept of prenuptial agreements though rare are not unheard of in India. A couple may decide to enter one for a multitude of reasons or at the instance of their families who are looking to gain a business advantage from their union. However, these agreements are not legally valid in the eyes of the law. Indian Courts have held such agreements to be legally unenforceable and void under Sections 23 and 26 of the Indian Contract Act on account of being against public policy as they include a separation clause or a clause deciding the number of children they may or may not have or even a clause restraining the liberty of one or both spouses from remarrying as per their wish or all of the aforementioned.

A pre-nuptial agreement will also be outside the purview of an individual’s Personal Laws like the Hindu Marriage Act. It also goes against the belief that marriage in Hindus is a sacrosanct union. While a marriage in Islam is a contract, it is yet again governed by Muslim Personal Laws. However, as an exception, a Court may allow the execution of such an agreement so far as the  division of the couple’s assets are concerned as the Bombay High Court did in Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu without referring to or deciding the legal validity of the prenuptial agreement the dispute therein arose out of.

The Way Forward

The Ministry of Women and Child Development in March 2018 had urged the Centre to consider imparting legal recognition to prenuptial agreements under the belief that it would save marriages as it would make spouses wary of callous dissolution of their marriage and also prevent injustices being meted out to women who are deserted by NRI grooms. Furthermore, it would put an end to contested divorces as the parties to the agreement would have no choice but to amicably part ways by way of mutual consent divorce.

Standing in 2021, three years later, there is no saying when or if prenuptial agreements will be bestowed with legal recognition. Until then the smart thing for couples to do is to sit down with each other and have that financial discussion irrespective of whether what is decided is penned down on a stamp paper or not. Properties bought post the nuptials and/or out of both their finances may be co-owned so as to ensure a fair and equitable distribution of assets. In case they decide to work with each other, they should ideally have a separate partnership contract drawn with respect to their business, keeping their personal and professional lives clearly demarcated.

Marriage has never been simple. But in today’s date, it is even more complicated than one can fathom. The necessity of such an agreement is even more aggravated by the fact that women are now equal financial contributors to their marital homes if not more than their partners. They are also liable to maintain their own parents simultaneously. In such circumstances, it is but natural that a person would want to protect themselves and prenuptial agreements offer exactly that.

Mannat Singh is an advocate. The views expressed are the authors own.