A couple who are about to get married and thus they make an agreement and that particular agreement is called a Prenuptial agreement or Prenup agreement, this agreement is made as we all know that marriage is a kind of bond that is said to be made in heaven but the end of such marriage creates very worst conditions for the couples, therefore, to tackle such worst situations and tackle the financial and emotional trauma the couples go on to form prenuptial agreement.
As per the Indian Legal system this prenuptial agreement is neither legal nor void, India is a very diverse country and is very rich in culture as per the concept of Indian culture the prenuptial agreement concept is very new to couples it is very rare when the two individuals get the prenuptial agreement drafted before marriage, but the concept of a prenuptial agreement is very common in western countries and every person out there gets this agreement to be made for them.
In India marriage is not any kind of contract thus there is legality for the prenuptial agreement as per the Hindu Marriage Act 1955, but it comes under the ambit of the Indian Contract 1872 act as a prenup is a type of contract between the two parties.
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What are the important clauses for the prenuptial agreement
- The assets and the liabilities
- Property that needs to be disposed
- Child custody
- Loans or any kind of the joint property
- Any individual property
- Maintenance
- The overall expenses
- The financial status of both the parties
- Other claims
These all grounds are mentioned on the blank sheet of paper and duly signed by the parties and are registered and notarised to keep everything crystal clear and transparent.
Marriage is not considered a contract in religious or personal law. Therefore, prenups are dealt with under Section 10 of the Indian Contract Act, 1872 instead of any matrimonial laws.
Prenuptial marriages are against public policy and are therefore void under Section 23 of the Indian Contract Act, of 1872.
Prenuptial agreements are not considered binding and only have the same value as a memorandum of understanding.
Premarital affairs are often considered a social stigma that is seen as a sign of mistrust and lack of marital survival.
Prenups are legally binding but are taken into account by courts in sentencing.
In the case of Jamna Dass v. Sahiboo where the prenuptial agreement was present and clearly stated the property of the partners, the case was very easy to dispose of and it was not necessary to consider any of the other facts because of the availability of the prenuptial agreement.
Prenuptial agreements do not yet have a specified or structured format and can be tailored to the specific needs of couples, but there are certainly a few things that individuals need to consider when drafting a prenuptial agreement:
To be a valid legal document, a contract must fulfill all the requirements under Section 10 of the Indian Contract Act, of 1872.
The contract must be duly signed by both parties that make it up.
The property and liabilities of both spouses must be stated in the contract.
The contract must contain a severability clause that if any provision of the contract is held invalid, all other provisions will prevail.
The agreement should set out the rights and ownership interests of each spouse in the common property before the marriage.
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