PRE - NUPTIAL AGREEMENTS [CRITICAL EVALUATION]

Pre – Nuptial Agreements are the new trend now. Starting from the foreign countries where a Pre – Nuptial is very common these days the same has come into force in India and has ever grown in the society.

The term Pre – Nuptial also known as [PRE – NUP] or Pre – Marital agreements has been widely used in India on and after 2016.

WHAT IS A PRE – NUPTIAL AGREEMENT?

A Pre – Nuptial agreement is a before marriage contract which is made between two parties namely

• The Husband and
• The Wife

Such an agreement is executed before the marriage ceremony which must be signed, registered and shall be notarised as a document. A Pre – Nuptial agreement is a formal and written agreement which is duly signed and witnessed by the two parties above named. It shall list all the articles which were exchanged between the parties at the time of marriage. I.e. [Gifts/valuables given from the groom’s side to the bride and vice versa].

A Pre – Nuptial agreement primarily covers the following issues. They are:

1.     Distribution of Property -Whether acquired Jointly/Individually during the time of marriage.

2.     The custody details of the children.

3.     The liabilities for the children. I.e. [who takes how much responsibility for the upbringing of the child]

4.     Setting up the maximum cap for claiming alimony.

The very basic purpose of this agreement is to safeguard the interest of both the parties. As we all know marriage is a big responsibility and breakdown of the same can happen for a variety of reasons in the future which cannot be predicted at that very moment.

As the saying goes “precaution is better than cure”, a Pre – Nuptial agreement is a precautionary measure taken by the parties safeguarding their interests if in case there need be to take a divorce. Such an agreement also makes the process of divorce smooth and hassle free.

WHERE HAS THE IDEA COME FROM?

The idea of such agreement has come from the western nations. The concept of Divorce being prominent there had brought about this change where spouses could enter into such a contract and pre decide the consequences if the marriage falls apart. It is stated that about 60-65% of the spouses in foreign countries enter into a Pre – Nuptial agreement. Hence this trend is followed in foreign nations. However, the same is not seen in India due to a variety of reasons. The major factor being “the social stigma”

WHAT ARE THE VIEWS OF PRE – NUPTIAL AGREEMENT IN INDIA?

However contrasting it may sound, but the idea of Pre Nuptial agreements are very similar to Euthanasia. Similar to Euthanasia, PRENUPS have a divided view and has no statutory law to clearly decide upon the concept. The baseline is that: The legal system in India does not hold such agreements as legal however, there is no categorical law governing the same.

1.     Governed by the law of contract

Pre – Nuptial agreements are said to be governed by the contract laws of India as for the validity of the same they need to satisfy all the essential ingredients which are laid down vis proviso 10 of the Indian Contract Act, 1860.

As such these agreements are not governed by matrimonial or personal laws of the land but are governed as separate contract laws. This is because the basic crux of this agreement and the binding force is on the dependency of fulfilment of directions and clauses mentioned in the contract thereof and breach of the same would be a breach of contract similar to that of the contract act.

That the nature of such agreement is contractual and hence shall not be dealt with matrimonial laws but the Contract Act, 1860.

2.     Void u/s 23 of The Indian Contract Act, 1860

Pre – Nuptial agreements are said to be violative u/s 23 of the Indian Contract Act, 1860 on the grounds of

• Defeating the provisions of personal laws
• Immoral and
• Opposed to Public Policy

As we all know that marriage in India is not a contract but is said to be a sacrament. Even if we look at the Muslim personal law, the conflict of Nikah as a contractual marriage is very well explained and negated.

Marriage as an institution is based on customs, usages and other sacraments and is not based on any sort of contractual obligation. It has more morality and values than obligations and paperwork.

As such these agreements are said to be void u/s 23 of the said Act.

3.     Special Marriage Act

Pre – Nuptial agreement are accepted to be binding if in case the marriage has been solemnised under the Special Marriage Act and that all the relevant documents have been provided to the registrar.

PRE – NUP AND PERSONAL LAWS

With reference to Pre – Nuptial agreement and Personal Laws there are certain disagreements. Personal Laws are based completely on sanctions, morals, ethics and customs. Whereas Pre – Nup is a western concept completely derogatory to the ethics and values levied by the personal laws. All the personal laws see marriage as a sacrament and not a contract. The basic idea of a personal law is to keep the marriage intact. The concept of divorce and annulment of marriage is not at all accepted.

Etymologically speaking annulment of marriage was said to be the last resort. In case of these agreements they destroy the very crux of adjustment and compromise which is a much-needed thing for the right working of a marital life. The Pre – Nup on the contrary lays down individual interests and a rule of thumb to be followed. Unlike science, marriage has no formula and to make it work both the people involved in it must be in complete sync which these Pre – Nups will never allow. It is treated as an easy way out and to shove away all the responsibilities which come in the way of marriage.

PRE – NUP AND MOU

There lies a fair bit of confusion between MOU and Pre – Nup. Both of them are treated as one and the same.

However, an MOU is made generally at the time of dissolution of marriage and a Pre – Nup is created before the marriage to decide over in advance how such breakdown will be dealt. MOU can however be an alternative to a Pre – Nup but they cannot be the same. Though both of them are made for the same concept and the have a lot of peculiar similarities, both of them cannot be said to be the same. There lies a thread line difference between both of them. Though to a layman both would look one and the same but when we dig into the technicalities of both of them are completely different.

REQUIREMENTS FOR A PRE – NUP

Now we shall discuss what are the essential requirements for a Pre – Nuptial agreement.

A Pre – Nuptial agreement shall contain the following:

Pre – Nups create certain rights and liabilities for the spouses which are common in nature and should be followed accordingly. In the light of this, there are certain common clauses which are found in almost all such agreements. In my blog, I shall be discussing such points in detail and its effect for the same and also its use.

1.     Separate Property and Shared Property

Any property which is owned or acquired by either the husband or the wife during the lifetime of the marriage irrespective of the fact that on whose name has such property been taken shall be deemed to be joint property and shall be distributed and divided equally at the time of such separation/dissolution. Such property shall be called marital property or Shared Property.

The spouses may however, if the need be classified and specify certain property which will not be divided and shall be deemed to be Separate Property.

2.     Earnings during the marriage

It is a well-known fact that the earnings of both the spouse together accumulates the income of the family and it is upon the contribution of both that they run a family financially. Finances are thus shared according to the income standard of the husband and wife individually. In case of dissolution the income may be asked to shared and thus to avoid such a scenario both the spouse add a clause by way of which such earnings become separate property, subject to the responsibility towards payment of alimony and maintenance.

3.     Provisions relating to Alimony/Maintenance/Support/Custody of Children etc

Pre – Nups also provide the settlement for Alimony/Maintenance/Support etc. As we all know that Alimony and Maintenance is one of the biggest questions after marriage. To avoid this, the spouse, decide over the same prior to the dissolution making it non – litigious and simple to handle. The following questions are dealt with in such clause. They are:

• What should be the amount of alimony or maintenance to be given if the spouse is earning?
• If the spouse if not earning, what should be the amount of support given to him/or her?
• What shall be the changes in such payment if the spouse who [at the time of dissolution of marriage] was not earning and subsequently starts to earn?
• Custody and support of children
• If there is more than one child then how shall responsibilities and support be distributed?
• Who shall take how much burden of the finances and maintenance of the child?

By adding such a clause, it makes the work of the court easier to deal with such amounts as has been already pre – decided by the parties with free consent. Hence the same shall be working and complied with.

4.     Transfer of Property

The spouses upon their choice decide upon the transfer of their property and the disposition of the same upon their death. They can also include wills and codicils thereto. Irrespective of the obligations that the husband and the wife hold under such agreement, this clause shall stand independent. However, such a clause shall be enforced with caution as both the spouse might find it as a small window to do away with their responsibilities by making such clause as independent [notwithstanding the obligations]

5.      Applicable Law

The agreement shall also provide the law which shall be applicable on such agreement. In case there is no specification of any such law then, the following two maxims shall be applied by the court of law to come to a decision. They are.

• The rule of Lex loci contractus       OR
• The rule of Lex loci celebrationis

IS A PRE – NUPTIAL AGREEMENT LEGAL IN INDIA?

Though there have been a lot of differences of opinion regarding the question above. Pre – Nuptial agreements are not held to be valid or legal in India on the basis of the grounds which are already mentioned in my blog above. However, The Supreme Court of India has on several occasions taken help of a Pre – Nuptial agreement to come to a proper decision. Given below are a list of cases whereby Pre – Nuptial agreements played an important role to come to a conclusion by The Supreme Court of India.

Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu

Anjali Sharma who is a business woman, forbade her husband to remarry after divorce. She also claimed the custody of all pets which were bought during the time of marriage with the help of a Prenuptial Agreement.

On other occasions, The Supreme Court has taken a different opinion and has declared Pre – Nuptial agreements as Invalid. Below are the cases whereby the Supreme Court has upheld its view.

Tekait Mon Mohini Jemadai v. Basanta Kumar Singh and Krishna Aiyar v. Balammal.

THE GOA WAY

Believe it or not, couples before entering into marriage in GOA can enter into a separation of assets agreement also known as “Pre – Nuptial Agreement” which shall draw up a list of possessions that belong to one another. Such an agreement is irrevocable. However, it is not binding to the children who shall have equal claim on both parents’ assets. The Civil Code in GOA provides for a Pre – Nuptial agreement.

WHAT ARE THE PROS AND CONS OF A PRE – NUPTIAL AGREEMENT?

Everything has its own positives and negatives and so does a Pre – Nuptial Agreement.

I have discussed some of the advantages and disadvantages of such agreement below for understanding purpose.

ADVANTAGES OF A PRE – NUPTIAL AGREEMENT

1.     The agreement protects the rights of both children and grandchildren from a previous marriage.

2.     It lays down a complete, clear and transparent view of liability of both the partners.

3.     Protecting the assets in case the spouse is working [in case of separation].

4.     Non sharing debts if one of the spouses is debt free individually.

5.     Advance settlement of maintenance, alimony, settlement, court charges etc and any further costs involved in the process of separation.

6.     Protection against Domestic Violence Act, 498A and also protection against false prosecution against the same.

7.     Clarifying the financial rights of the spouse clearly with proper transparency.

DIS – ADVANTAGES OF A PRE – NUPTIAL AGREEMENT

Though there are certain advantages of such agreement we cannot deny the disadvantages which they carry. Some of the major disadvantages are listed below.

1.     Preparation of such agreements encourage divorce.

2.     Such agreements can also add a “No Child” provision if the husband or wife opts for the same.

3.     Such agreements can lay down the religion which is to be followed by the child who is being raised.

4.     Such agreements may also require the spouse to follow a code of conduct. This shall dilute the very essence of marriage whereby both the husband and wife adjust and make the best out of such marital life.

5.     It also provides a cap to get divorce and can also reduce the grounds.

6.     Comes with a terms and conditions applied which is never fruitful for a married life.

CONCLUSION

Though the concept of such agreements is very much prominent in the western nations, it is yet to be implemented in full force in India. The nature of such agreements is yet to be understood and deciphered by the Indian Society.

Such agreements have been on trend after 2016 and are more prevalent in the capitalist families and the rich families. More people are inclined to this in the metro cities as they find that such a pre-planned reduces their risk of marital life and also covers all the unnecessary hassle which comes from time to time.

India being a multi linguistic, diversified nation state will definitely take a long time to implement this idea as it will have various schools of thought which will make it all the more troublesome for the Parliament to and the Indian Government to take a step towards it.

IN MY PERSONAL OPINION

Such agreements no matter how lucrative they might seem on paper are a far-fetched option. It is an easy way out to opt out of the responsibilities which one has to carry after marriage. There cannot be a marriage without sacrifices, adjustments, compromises and other variables which time and again need to be dealt with for the proper functioning of a marriage. Also, we cannot neglect the social stigma which revolves around the institution of marriage in India.

It is undoubted that such an agreement does reduce the risk factor for maintenance/alimony/support and financial assistance but the cost of such risk reduction is far too great to compromise with.

Such agreements can end up being arbitrary inculcating the silliest of clauses. It looks to me more like a code of conduct to be followed after marriage, the breach of which will be subject to prosecution.

Summing up, the breach of such an agreement would not provide any direct legal relief to the aggrieved person and such agreement [if made] should be very carefully and cautiously weighed with the advantages and disadvantages it brings.