A prenuptial agreement is a contract signed by both parties before getting married. Prenups are very common abroad but are not warmly welcomed in India. It is a signed, registered and notarized document that usually outlines the distribution of assets, liabilities, and issues relating to custody of children, alimony, property distribution, the responsibility of the partner if the marriage falls apart in the future.
It is a formal written agreement signed and witnessed by both the parties and also lists the articles brought by the girl at the time of marriage and also lists the items given to the husband by his in-laws and vice versa.
The primary clauses of prenup cover issues such as:
- The custody of their children.
- The distribution of property acquired by both the partners or individually during the subsistence of the marriage
- Setting up an upper limit of alimony
- The division of liabilities concerning taking care of the child as well as the partner if financially not stable.
- Objection concerning second marriage if the responsibility of children lies with that partner.
The Indian government does not recognize prenups as legal agreements. In India, prenuptial agreements are neither legal nor valid under the marriage laws because they do not consider marriage as a contract. Marriage is treated as a religious bond between husband and wife in India so prenuptial agreements don’t find social acceptance in Indian society. However, these are governed by the Indian Contract Act and is given as much importance as any other contract.
The Indian courts take grants a prenuptial agreement if both the parties mutually agree to it and sign it voluntarily, without any force, influence, or threat. Besides this, the agreement should be fair enough for both parties, clearly stating the division of property, personal possessions and financial assets of the parties, and should be certified by a separate lawyer for both the parties.
The advantage of having a prenuptial agreement is that it forces couples to have a financial discussion before marriage. The issues that can be efficiently dealt with through such a contract include protecting both the parties from each other’s debts, preventing a division of the family businesses and disputes regarding separate and shared assets, as well as dealing with the issue of children’s custody after the dissolution of a marriage. So, essentially, the agreement helps decide who gets what if things don’t work out.
