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Status of Pre Nuptial-Agreement in India- Anjali Kapoor

Updated: Nov 29, 2020

A prenuptial agreement may be a contract between two individuals who are close to marry. It is a detailed record of finances and personal liabilities of the couple. The instrument helps to avoid financial disputes and trauma at the time of separation, in case the marriage fails. In the case of the men, it protects them from exorbitant divorce settlements. In the case of individual earners, it makes sure that nothing can become a point of dispute in case of a divorce. A prenuptial agreement must fulfill the following conditions: 1. The Agreement should be fair, and duly acknowledged. 2. There should be list showing each spouse's assets and liabilities before the marriage, so that settling issues of division of property in the event of marriage breakdown becomes easier. 3. The Agreement may also contain the necessary history of proposed alliance. 4. The Agreement should be reviewed by separate lawyers and duly certified by them.

In India, prenuptial agreements are neither legal, nor valid under the wedding laws. However, these are governed by the Indian Contract Act and have the maximum amount of sanctity as the other contract. Yet, they are not acceptable because they do not consider marriage as a contract. Marriage is treated as a sacrament; a religious bond between husband and wife. Prenuptial agreements don't find social acceptance because people have prejudiced them for a divorce letter. The Indian courts take cognizance of a prenuptial agreement if both the parties mutually comply with it and sign it voluntarily, with none undue influence, force or threat. The agreement should be fair and must clearly state the division of property and financial assets of the pair. For a prenuptial agreement to achieve success, both parties need to be willing to participate in it and need to be completely honest about their individual assets and liabilities. The contract also has got to be in situ before the marriage takes place. A big advantage of a prenuptial agreement is that it forces couples to possess a financial discussion before marriage. The issues that can be efficiently dealt with through an open discussion and formation of a contract. This includes protecting both the parties from each other's debts, preventing a division of the family businesses and disputes regarding separate and shared assets, children's custody after the dissolution of a marriage. This concept of a prenup is in wide use in Europe, the USA, UK, etc. It is because they have a high cost of living apart from their gigantic student loans for further studies. So, essentially, the agreement helps decide who gets what and makes a clear demarcation of each other’s assets. It allows the couple to lead an independent life with the assets they own. The prenuptial agreement may be a practical tactic to deal with a tragic incident like divorce, but some unscrupulous Women make false allegations and misuse Section 498A or Domestic Violence Act of IPC for blackmail and Extortion of cash. Although all matrimonial laws in India have provisions for a wife's maintenance and alimony, the maintenance to be paid always depends on the partners' income, property, and other circumstances. In a prenup, the couples declare their assets at the very beginning of married life, reviewed their financial positions, and agreed to a mutually acceptable division of wealth so that they don’t get into the hassle of fighting a legal battle. This is the first reason behind drawing up a prenup– in order that an individual may have a good idea about what to offer and what to receive if the marriage goes kaput. These days, some couples are even pre-determining matters like custody of a toddler in order that it eases the prolonged procedure when people recourse to a court of law to settle disputes amicably. This generation is about ambitious, educated, and focused people that don't need a single mistake to tug them down in life. Arranged marriages once gave couples the safety of families knowing one another well. In the age of instant marriages, its fine for couples to be practical about keeping their individual lives to themselves. In conclusion, a prenuptial agreement is quite practical and viable, the couple should not take it in the wrong stride. Nobody should make any wrongful gains from such an agreement. Also, the couple should not think of it as a divorce letter, but rather as a means to secure their future in case things don’t work out.

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