Prenuptial agreement

It is a very good point. In France where I spent a large part of my life, such agreements, signed before a notary, are very normal. While marrying, the spouses have to specify whether such an agreement is signed. If no agreement is signed, then the standard legal provisions will apply. This means each partner will remain the exclusive owner of property owned before the marriage while the property acquired during the marriage will be shared. Mostly rich people need such agreements.

Dear Vishwaji, I want to know if Indian courts accept such agreements? Its validity in Indian courts and under law. Judgements where such agreements were considered by Indian courts for or against such consideration. If such agreements were indeed made-are there instances where Indian courts have honored these? Appreciate any inputs.Thanks!

Does the prenuptial agreement hold good in India as well?

There’s something you might want to add your wedding corsage, or it’s baccarat-studded crystal gifts, accessories and jewellery. It’s a little piece of paper that might spell out the route to ‘Well-ville’ in case your picture-perfect marriage undergoes any discord. As divorce rates zoom and break-up parties become popular we are looking at a society in transition.

The law says...
Ace lawyer Satish Maneshinde’s certainly not fence-sitting over the thought. “Prenups should be brought into effect here. That would be very good,” says Satish. “Divorce cases are rising at an alarming magnitude today — almost 200% a year in Mumbai — especially among youngsters. The tolerance levels have gone down plus people are becoming aware of their rights.

The mindset we have makes us think that if the woman makes a move toward a prenup, she’s trying to extract money from her husband. But that’s not true. Sometime, women don’t get what is due to them as their husbands don’t disclose income; there is a real lack of transparency,” he adds.

Celebrity divorce lawyer Mrunalini Deshmukh, who is handling supermodel Ujjwala Raut’s pending divorce case in Mumbai, says in today’s times a prenup is ‘highly recommended’. “It would not only save a lot of time, money and stress to litigants but also lessen the burden on the matrimonial courts. Prenups are not tenable or executable in a court of law. However, they can at best be an indication of the intent of the parties,” she says.

Money, money, money!
“One of the biggest causes of divorce is financial woes as money is presumed to be disclosed,” reveals psychiatrist Anjali Chhabria.

“I recently had a case where an impending marriage broke up because of it. The woman just said ‘What if things turn sour…how will I be supported?’ So, really, this is a subject that must be treated gently. And not just regarding finances, one must do a complete personality pre-nup check — covering emotional, financial and social areas,” she advises. But all said, is the young Indian metros*xual ready for it?

Society still wary
Koel Purie, TV show presenter who tied the knot a few months ago, says, “If you need a prenup you shouldn’t be getting married at all. After all the couple must have complete understanding of each other at the start.”

Singer and author Suchitra Krishnamoorthi voices a similar opinion. “The concept of a prenup says you’re assuming trouble. Now, that’s a wrong premise to begin with as you’re making it about money from day one,” she says.

Musician Mukul Deora admits he can’t see himself signing a prenup. “I doubt I’ll do it as I think it can take the romance out of a relationship and it’s also a little heavy on both parties. On the other hand I’ll play the Devil’s Advocate and say it can also be a great reality check. It shows the worst that can happen — I’ll know this is how my shirt is going to get dhulao-ed so to speak,” he adds.

Construction magnate Ashish Raheja has mixed thoughts. “I’m not sure if I’d go for one but maybe a prenup is a great idea if one keeps the degree of mutual respect intact,” he says, adding, “A prenup also need not be a cut and dry document. It could be verbal too. The intention should be to protect each other financially without reducing the romance to a contract or a document.”

COURTESY:DNAIndia.com »

Since allmost all prenuptial agreements are "contracts based on personal volition of parties" they are not specifically enforceable. However since it is a contract if the conditions of S.10 Indian Contract Act are met then it is enforceable. Make sure it does not go against the public policy because courts may hold it void on that account

Thank you Chughji, Are there any case laws, judgements involving the same? Here, the public policy is itself the problem necessitating such contracts! One party is forced to protect itself due to biased laws!

The reason for bringing prenup to the forum is to increase attention/ awareness of the same existing in other areas of the world and to bring it into mainstream in Indian context. Collective efforts are needed to negate the effects of biased laws.

In addition to Mr.Chugh,

.In India however there is no such thing as pre-nuptial agreement. , unlike most countries where a valid prenup is legal and binding when a couple separates, the Indian legal system does not recognise this pre-marital agreement. How important is such legal documentation is really a matter of great debate. As it is stated that Marriages are made in heaven but painful break-ups and ugly divorces happen here on earth. Things can be a lot worse if financial insecurities are added to the emotional trauma and you are left near-bankrupt – just because your loving spouse has walked away with every hard-earned penny. Is it possible for both partners to have a “fair” deal when they decide to part ways? The answer is ‘yes’ if you have a pre-nuptial agreement in place.

Prenuptials are enforceable guidelines , contrary to popular perceptions it is not only about financials but is much more. Prenuptial agreement is more likely to stand up if it meets the following conditions:
1. The Agreement should be fair, and duly acknowledged.
2. The Agreement should have attorney certification from both parties as well.
3. The Agreement should have clause stating that if any provision of the agreement is
invalidated, the rest of the agreement still remains in effect.
4. There should be listing attached showing each spouse's assets and liabilities.
5. The Agreement should have all the clauses of agreements arrived at between the
prospective spouses.
6. The Agreement may also contain the necessary history of proposed alliance.
7. The Agreement should be reviewed by separate lawyers and duly certified by them.
8. The Agreement should be setting out each party's assets, debts, and property rights before the marriage, settling issues of division of property and of spousal support in the event of marriage breakdown.

However the prenuptial agreement may at least check some false prosecutions by unscrupulous Women, who are misusing Section 498A or Domestic Violence Act of IPC for blackmail and Extortion of money. That means, if the both parties are genuine, transparent and do not have any pre-planned ill mind, will accept the same before marriage itself. The Prenuptials stand a very good chance of enforcement in India if the prenuptial is certified by the court easily and with open mind and this is possible in the "Special Marriage Act" where in the magistrate goes through all the documents and then declares the marriage based on those. However magistrate can refuse the marriage in certain circumstances. eg: if one of the spouses is below the age of marriage the magistrate can dismiss the petition for declaration of marriage or if the magistrate feels the some clauses are unfair then also he can dismiss but once the magistrate has accepted the prenuptials then for demanding money or anything beyond prenuptials the onus is one other party to prove additional circumstances.

Sainathji, That is the crux of my query. In India, prenuptials has no legal sanctity. But prenuptial contracts solves many of the problems currently faced by misuse and abuse of biased' women empowerment' laws. In this era where there are several ongoing changes and discussions in legislature-efforts to bring prenuptial agreements which is fully enforceable into mainstream is probably the best thing to do. It brings much more certainty and moderates expectations and prevents abuse.

That is a great idea-that prenuptials must be approved/ registered. That binds the parties and mitigates foul play.

Pre-Nuptial Agreements are legally enforceable in Europe and America.But in India we do not have the contract marriage system.I support your idea,which will be very useful in the ongoing turmoil in the Indian Marriage System.70% of the marriages are getting dissolved for ifs and buts.Women are taking advantage of the prevailing sections in crpc,to seek venegence,not only against the husband,but the entire household.In the present day pre-nuptial act is enacted,it will be of help for both the s*xes.

vested interest will not allow this, as it will end extortion wing of bharat ratna DV  & 498a