Introduction:
Prenuptial agreements are signed between the spouses before the marriage is conducted and these agreements define the rights and liabilities of each partner either during the course of the marriage or they define the rights and liabilities in case of breakdown of the marriage or both. In India, we find that there is no such law at present dealing with such agreements and thus any kind of prenuptial agreements have a doubtful status. In India, the matters relating to marriages, divorces and maintenance etc. are dealt with by the personal laws of different communities and thus the status of prenuptial agreements largely depends upon the judicial interpretation as there’s no law in place dealing with this aspect. Moreover, the marriages in India are considered a sacred union, by and large, therefore, this matter was not considered so pressing as to be taken up by the lawmakers of the country.
The driving force behind the slow but sure gain in popularity of the prenuptial agreements is the desire to protect the property if there is a breakdown of marriage and in this process, they try to negotiate a deal best suited for each of them. The rise in the divorce rates is another reason behind the rise in popularity of the prenuptial agreements[1]. The marriage is now being seen as a coming together of two equal individuals and thus this has also influenced the prenuptial agreements. The women are much more independent than before and have entered the workforce and into their own assets. Therefore, all these reasons are behind the prenuptial agreements even becoming an option for people entering into a marriage.
Prenuptial Agreements – International Perspective
The prenuptial agreements can be used as a future reference for the couples in order to make out what are their liabilities towards each other. They can be beneficial during divorce suits as well. However, these agreements do not have uniform & universal application due to varied reasons. The different types of legal systems prevalent all around the world make it difficult to have a uniform framework for such agreements.
England
In England, traditionally the agreements related to the prenuptial agreements were not considered as binding or valid ones. In many English cases, it was held that the provision of money to a spouse in case of breakdown of the marriage by the other spouse was held to be against public policy. It was only in the year 2010 that the Supreme Court passed the landmark judgment in the case of Radmacher v. Granatino[2], wherein the Supreme Court put forward three factors in order to make prenuptial or postnuptial agreements binding on the spouses entering the agreements. These factors were:
- The agreement must be entered into with free consent and not under any influence or duress.
- Whatever the agreement signifies must be mentioned in clear terms and the financial statements must be disclosed and there should not be any ambiguity.
- There must not be any conditions which would be unfair to either of the two spouses and the financial obligations must be handled taking note of the need, compensation and sharing when the breakdown takes place.
USA
In the United States of America, the position of the prenuptial agreements is quite established as compared to England. In the USA the prenuptial agreements are valid in all fifty states of America, although there are obvious differences in existence as far as the procedural aspect is concerned. Despite the differences, there are some basic prerequisites have been recognized all over the USA. The spouses must fully disclose their assets before entering into the agreements, the parties must enter into the agreement on their own accord, the agreement must not be unethical and immoral, and they must be entered into before the wedding takes place and should not be against the public policy.
Canada
In Canada, these agreements according to the Divorce Act, 1985 are taken into consideration while determining the custody of the children upon divorce and other allied matters. The prenuptial agreements are given importance in Canada at the time of divorce only if it is beneficial for the welfare of the child. The importance which is given to the prenuptial agreements in Canada is the result of the recognition of the marriage contracts under the Family Law Act, 1990.
China
In China, the prenuptial agreements are legally valid and the Article 19 of the Marriage Law of the People’s Republic of China and the husband and wife can enter into the agreement as per their wishes and put down in writing that how they wish to divide their property that existed both before marriage and acquired after marriage in case they decide to part ways. But, there exists a lacuna of laws on how these agreements must be entered into and be practically applied and therefore the prenuptial agreements are not so popular in China.
Prenuptial Agreements under Indian Law
There is a lack of acceptance of the prenuptial agreements in India as such but still, we find some traces of such laws in the provisions of certain laws. Under Section 40 of the Divorce Act, 1869 which is related to the dissolution of Christian marriages, there are provisions that in case there has existed a prior prenuptial agreement with regard to marriage then the court will take that into consideration while passing a decree as far as the division of property upon the breakdown of the marriage is concerned. With regard to the Hindu marriages, the marriage amongst the Hindus is considered a sacred bond and thus there is no space for such agreements[3].
A prenuptial agreement is a form of contract. Therefore, due to the lack of such provisions in the personal laws of the Indian Contract Act, 1872 is invoked. There has been a tendency amongst the courts to declare such agreements as void as they were held to be against public policy[4]. The reason given behind such a treatment is that the prenuptial agreements wanted to alter the situation with regard to the personal laws as far as matters related to the marriage were concerned.
The prenuptial agreements are very much a part of the marriage in various religions, for example, the Ketubah marriage contracts are an essential part of the Jew marriage, wherein the groom promises to look after the wife and provide economic protection in the event of his death. The Muslim marriages are indeed a form of a civil contract. It is entered upon the agreement between both the parties. The prenuptial terms of the Muslim marriage contract are those provided under Muslim laws. The mehr or dower is an essential part of the Muslim marriage which is agreed upon in the nikahnama itself and is paid by the husband to the wife.
Many times the judicial pronouncements with regard to the prenuptial agreements have been held to be void by the judiciary as being against the public policy. In the case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh[5], it was held by the Calcutta High Court that a prenuptial agreement wherein the husband had agreed to never separate his wife from his mother and to go by his mother-in-law’s instructions all the time was found to be against the public policy and thus held as void. In another case of Krishna Aiyar v. Balammal[6], the Madras High Court held the agreement between a husband and his wife to be against public policy wherein they had agreed by way of a prenuptial agreement that he’d provide his wife with fixed amount money in case their marriage does not work out.
In the case of Bai Appibai v. Khimji Cooverji[7], the Bombay High Court held that an agreement entered into by the husband and wife to live in Bombay after getting married was not held to be against the public policy as it was not restricting either of the spouses to live in Bombay forever.
Although it is a widely accepted fact that a Muslim marriage is in the nature of a civil contract but there have been instances where the prenuptial agreements have not been accepted as valid and as being against the public policy. In a case where the Muslim husband promised through a prenuptial agreement to provide for a certain amount of money as maintenance upon separation was held has invalid by the Bombay High Court as it promoted the idea of future separation between spouses as being against the public policy[8].
The system of personal laws in India is of such a nature that the Muslims have some form of contract in the form of nikahnama where they can have their own terms. As far as the legality of the prenuptial agreements with regard to the Hindus is concerned it is mostly dependent upon the kindness of the judiciary. The prenuptial agreements can be seen as a kind of memorandums of understanding between the spouses in order to lay down the rights and duties. The agreements might include certain clauses related to the assets, children, spousal rights and duties, lifestyle and operative clauses.
Conclusion
The prenuptial agreements in the absence of a solid legislative enactment lack the backing of the law. There is a dire need to consider the prenuptial agreements not from the lens of a commercial agreement but from the lens of family law wherein the rights and duties of the spouses are properly defined. Our country has undergone a plethora of changes in the recent past and it is only practical to introduce the concept of prenuptial agreements. These agreements at the very basic recognize the equality between both the spouses and thus can step forward towards gender justice. The various countries of the world have introduced the prenuptial agreements and they are implemented and are entered into as well and this enough proof that they work. It is thus time for our country to consider the prenuptial agreements as being a valid form of agreements. It is also time for our judiciary and legislature to provide the legal backing to the prenuptial agreements, which is long overdue.
References:
[1] http://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf
[2] (2010) UKSC 42
[3] https://lawsisto.com/legalnewsread/NTU5NQ==/Validity-of-Prenuptial-Agreements-in-India
[4] Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (1901) ILR 28 Cal 751
[5] (1901) ILR 28 Cal 751
[6] (1911) ILR 34 Mad. 398
[7] AIR 1936 Bom. 138
[8] Bai Fatma v. Ali Mahomed Aiyab (1912) 14BomLR 1178.
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