Prenuptial / Antenuptial Agreements In India
Under Section 10 of the Indian Contracts Act, prenuptial agreements have as much sanctity as any other contract, oral or written; just because litigation has not begun in this area does not mean that it has to be treated any differently, and that it cannot be enforced.
A prenuptial agreement is the latest fad that has hit the matrimonial scenario in India in the last decade. For the present age couple, marriage may be on the cards, but conditions apply. A pre-nup is a contract that would-be marrying partners sign into, laying out terms and conditions for distribution of financial assets, property, etc, in the event of a failed marriage or divorce.
Though quite popular in the West, the concept has not really taken off with Indians. Michael Douglas-Catherine Zeta Jones and Tom Cruise-Katie Holmes are among famous international couples that have opted for a pre-nup. As per reports, Catherine is entitled to receive a sum of 5 million dollars on charges of infidelity against Michael Douglas; Katie Holmes, on the other hand claims a whooping 3 million dollars for every year the marriage survives.
Documenting and agreeing upon division of property, child custody, cheating and philandering or negotiating other rights as means of safeguarding individual interests do spare the couple an embittered separation. This memorandum of understanding however, achieves an unreasonable status when clauses on paper cross the lines of prudence and enter the path of absurdity. The intention behind a pre-nup for a secure future post a split doesn't hold up in such circumstances.
One such example of a 'vicious' pre-nup can be found in the peculiar case of Anjali Sharma, a middle-aged businesswoman, who wanted to deny her husband the right to re-marry post divorce, besides asserting her claim over the custody of all pets, among other things. She realises, "It was a manifestation of anger, fear and insecurity, all combined together. Thankfully, it did not materialise."
A pre-nup may become a precursor to a negative married life ridden with lack of trust and one full of suspicion. Dr. Kamal Khurana, relationship expert and marriage counsellor, draws an analogy between a pre-nup and a restaurant menu. He says, "A relationship cannot be ordered for, like food at a restaurant. A pre-nup is precisely like that menu card, a deal you are willing to pay for."
Dictating outlandish terms like ownership of pets, far-out pointers such as barring the in-laws from staying over for more than two weeks or something as obnoxious as paying a fine for gaining weight over the marital years spell an outcome utterly immature and bizarre. It clear that the trend of pre-nups is predominant among sections of the upper strata of society, in instances of second or late marriages.
"Pre-nups that bar the husband from remarrying are a bit far-fetched and cannot be allowed within the jurisdiction codes." Nonetheless, he agrees that since one of the primary causes of dissolution of a marriage is pesky and interfering in-laws, 'lifestyle clauses' that determine the period of their stay is understandable and to some extent applicable. "Couples have forever been apprehensive of their in-laws. Pre-nups address such maladies."
In India, prenuptial agreements are not governed by the Indian marriage laws, but by the existing contract laws.
*Courts do take cognisance of a prenuptial agreement if both parties have mutually agreed, are competent to contract, and the prenuptial agreement clearly states the fair division of property, personal possessions and financial assets of the parties.
*A big advantage of a prenup is that it forces couples to have that all-important financial discussion before marriage.
*Issues that can be efficiently dealt with in a prenup range from divorce settlements, if the case arises, and the prevention of disputes regarding joint accounts to the custody issues of the children after the dissolution of a marriage. “Another important benefit of the prenup is that it offers protection from the spouse’s debts, if any.
*For couples about to take the plunge, it is perhaps wiser to go in for a prenuptial agreement that clearly outlines a fair division of property, personal possessions and financial assets, than fight over a favourite piece of furniture or pet in the process of dissolving the marriage.
*Almost 20 per cent of marriages that take place in the metros, especially in Mumbai and Delhi, involve some form of prenup.
*The problem, however, is that Indian courts have not totally recognised the validity of prenuptial agreements.
Under Section 10 of the Indian Contracts Act, prenuptial agreements have as much sanctity as any other contract, oral or written; just because litigation has not begun in this area does not mean that it has to be treated any differently, and that it cannot be enforced.
A prenuptial agreement is the latest fad that has hit the matrimonial scenario in India in the last decade. For the present age couple, marriage may be on the cards, but conditions apply. A pre-nup is a contract that would-be marrying partners sign into, laying out terms and conditions for distribution of financial assets, property, etc, in the event of a failed marriage or divorce.
Though quite popular in the West, the concept has not really taken off with Indians. Michael Douglas-Catherine Zeta Jones and Tom Cruise-Katie Holmes are among famous international couples that have opted for a pre-nup. As per reports, Catherine is entitled to receive a sum of 5 million dollars on charges of infidelity against Michael Douglas; Katie Holmes, on the other hand claims a whooping 3 million dollars for every year the marriage survives.
Documenting and agreeing upon division of property, child custody, cheating and philandering or negotiating other rights as means of safeguarding individual interests do spare the couple an embittered separation. This memorandum of understanding however, achieves an unreasonable status when clauses on paper cross the lines of prudence and enter the path of absurdity. The intention behind a pre-nup for a secure future post a split doesn't hold up in such circumstances.
One such example of a 'vicious' pre-nup can be found in the peculiar case of Anjali Sharma, a middle-aged businesswoman, who wanted to deny her husband the right to re-marry post divorce, besides asserting her claim over the custody of all pets, among other things. She realises, "It was a manifestation of anger, fear and insecurity, all combined together. Thankfully, it did not materialise."
A pre-nup may become a precursor to a negative married life ridden with lack of trust and one full of suspicion. Dr. Kamal Khurana, relationship expert and marriage counsellor, draws an analogy between a pre-nup and a restaurant menu. He says, "A relationship cannot be ordered for, like food at a restaurant. A pre-nup is precisely like that menu card, a deal you are willing to pay for."
Dictating outlandish terms like ownership of pets, far-out pointers such as barring the in-laws from staying over for more than two weeks or something as obnoxious as paying a fine for gaining weight over the marital years spell an outcome utterly immature and bizarre. It clear that the trend of pre-nups is predominant among sections of the upper strata of society, in instances of second or late marriages.
"Pre-nups that bar the husband from remarrying are a bit far-fetched and cannot be allowed within the jurisdiction codes." Nonetheless, he agrees that since one of the primary causes of dissolution of a marriage is pesky and interfering in-laws, 'lifestyle clauses' that determine the period of their stay is understandable and to some extent applicable. "Couples have forever been apprehensive of their in-laws. Pre-nups address such maladies."
In India, prenuptial agreements are not governed by the Indian marriage laws, but by the existing contract laws.
*Courts do take cognisance of a prenuptial agreement if both parties have mutually agreed, are competent to contract, and the prenuptial agreement clearly states the fair division of property, personal possessions and financial assets of the parties.
*A big advantage of a prenup is that it forces couples to have that all-important financial discussion before marriage.
*Issues that can be efficiently dealt with in a prenup range from divorce settlements, if the case arises, and the prevention of disputes regarding joint accounts to the custody issues of the children after the dissolution of a marriage. “Another important benefit of the prenup is that it offers protection from the spouse’s debts, if any.
*For couples about to take the plunge, it is perhaps wiser to go in for a prenuptial agreement that clearly outlines a fair division of property, personal possessions and financial assets, than fight over a favourite piece of furniture or pet in the process of dissolving the marriage.
*Almost 20 per cent of marriages that take place in the metros, especially in Mumbai and Delhi, involve some form of prenup.
*The problem, however, is that Indian courts have not totally recognised the validity of prenuptial agreements.
*However please note that in india marriage is sacrement not a contract .
Unable to find any judgements wherein courts have upheld validity of prenuptial agreements.
Unable to find any judgements wherein courts have upheld validity of prenuptial agreements.
