Pre-Nuptial Agreements by Somesh Vaidya @LexCliq

What exactly is a prenuptial agreement?

It is essentially a written agreement between two spouses that specifies what the respective spouses’ monetary obligation will be in the case of death, divorce, or separation.
In layman’s terms, it specifies the percentage of property, assets, and money that each of them will get if the marriage is dissolved.

In India, prenuptial agreements 

In India, the idea of a pre-nuptial agreement is foreign. India is a nation that takes pride in its rich culture as well as the love and warmth that its people share.

Unlike in Western countries, where marriage is regarded as a contract between husband and wife, marriage in India is regarded as a religious alliance of a man and a woman for life, and thus a prenuptial agreement is not legally binding under the Hindu Marriage Act, 1955, but is governed by the Indian Contract Act, 1872.

Because marriage is not considered a contract in India, it is uncommon to see or hear of a couple obtaining a pre-nup. Everyone has heard of a prenuptial agreement between a husband and wife, and it is becoming more popular in European nations.

Advantages and disadvantages

Everything has advantages and disadvantages, and a pre-nuptial agreement is no exception. Let’s go through them one by one:
A prenuptial agreement has the benefit of clearly defining both spouses’ obligations in the case of a divorce or separation.
Children’s rights and grandchildren from prior marriages are protected.

In the case of a separation or divorce, protecting another spouse’s possessions or interests from the other spouse’s authority.
Protection for a spouse who has no debts or responsibilities, beginning with his or her spouse’s liabilities/debts.
They may decide on the support or settlement obtained in a divorce case in advance, shielding the spouses from litigation and the legal struggle.

Although there is no legal provision for the termination of a pre-reconciliation agreement, it is nevertheless a social stigma in India and generates a bad image in people’s eyes since they believe the couple has already decided they would not marry.

If the husband elevates the marriage above the materialistic aspects of life, the pre-marital pact between the husband and wife may lead to pickles.

Essentials

  • Asset and liability disclosure
  • The financial or monetary situation
  • Real estate investments
  • shared possessions
  • Property severance
  • distinct characteristics
  • Maintenance or alimony
  • Child custody and support
  • Claims, Life insurance, and Medical insurance
  • Bank account or joint account management Managing home expenditures, bills, and so on
  • Jewelry, engagement rings, expensive wedding bands, paintings, and so forth.

Prerequisites

  1. The prenuptial agreement should be fair, reasonable, and properly recognised.
  2. Both couples’ lawyers should sign off on the prenuptial agreement.
  3. A list of both couples’ assets and liabilities must be included.
  4. A clause that says that even if one provision is declared null and invalid, the remaining clauses would remain lawful and legitimate should be included in the prenup.
  5. The prenup should include information about the problems that both couples have agreed on, such as maintenance/alimony, asset, and liability distribution in the event of a divorce.

If you do not enter into a prenuptial agreement, your state’s laws will decide who owns the property you acquire during your marriage, as well as what happens to that property in the event of divorce or death. (Depending on your state, property gained during your marriage is referred to as marital or communal property.) State law may even have an impact on what happens to some of the property you held before marriage.

Marriage is generally regarded as a contract between the married couple under Muslim and Christian law, and with that contract comes to some automatic property rights for each spouse. In the absence of a prenuptial agreement, for example, a spouse generally has the ability to share earnings, guarantee rights, and even sell the property.

Article by Somesh Vaidya

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