A prenuptial agreement (prenup) is a type of contract created by two people before entering into marriage, detailing property ownership, debts, and outlining property rights during the marriage and in case of divorce.
It addresses matrimonial disputes, separation, and divorce, providing a framework for a peaceful settlement of property, assets, maintenance, income, retirement benefits, savings, and alimony rights. In India, prenuptial agreements are not legal and not valid under marriage laws because Hindu marriages are not considered as a contract. Any agreement which is contrary or against public policy is not an acceptable agreement in India. Even prenuptial agreements came into force in India, since it is believed that marriages are considered to be a religious bond between husband and wife, the agreement would not be socially accepted.
In the case Bhagwati Charan Singh v. Parmeshwari Nandar Singh, L. R. (1942) ALL. 618 the supreme court held that Hindu marriage is not only a sacrament but also a civil contract. The court has also emphasised that the object of a contract cannot be a marriage.
The major provisions of the agreement –
1. Separate property
2. Alimony and Maintenance
3. Estate planning
4. Disclosure of assets and liabilities.
The Indian Court considers a Prenuptial Agreement valid if both the parties mutually agree to it and sign it voluntarily without any undue Influence or threat. These agreements come under the Indian Contracts Act, 1872.
However, according to Section 10 of the Act, Agreements will be treated as Contracts when formed with the voluntary consent of the Parties.
Goa is the sole state where prenuptial agreements are legally enforceable, following the Portuguese Civil Code, 1862.
Thus, prenups can provide clarity, protection and peace of mind when it comes to financial matters and division of assets in the event of separation. They allow both the parties to establish fair and agreed-upon terms, protecting their individual rights and interests.
Done By: Reshma A, 5th year B.Com., LL.B(Hons.
SRM University, Kattangulathur
For Origin Law Labs
