Shefali Chitkara wrote this article. It exhaustively covers everything about prenuptial agreements around the world. The author has also covered the legal framework, validity, and enforcement of prenups in different countries. The author has also comprehensively dealt with the relevance of prenups in Indian society. Let us begin with the introduction to prenuptial agreements!
Introduction
Have you heard about the recent Atul Subhash’s case? The unnecessary demands by his wife and mental torture led to the suicide of Atul Subhash. What could be a possible solution to stop such incidents in the future?
Can a prior agreement between the spouses help solve this issue? What are these prior agreements?
There was also a viral reel on social media wherein the bride presented a list of demands to the bridegroom as a condition precedent to marriage. The bridegroom was then asked to sign the list!
Isn’t it fascinating? Or, can we say that we are deviating from the concept of marriage as a “sacrament” to making it a contract?
Similar is the contention raised for the prenuptial agreements (hereinafter, referred to as “prenups”). Let us first know what these agreements are.
How will we define a prenuptial agreement?
Recent news has focused on Kim Kardashian and Kanye West’s divorce. Their marriage was preceded by a prenuptial agreement, which helped govern their rights and liabilities after the marriage.
What is this prenuptial agreement?
We can infer the meaning of prenups from the above example. A prenup is a binding contract between the parties about to marry each other. It contains all the details regarding:
- Distribution of assets between the parties,
- Terms regarding payment of alimony,
- Responsibility for payment of any debts,
- Custody matters,
- Rights of inheritance.
These terms will be fruitful for the parties in case of divorce, separation, or the death of any party. They also serve several other benefits. Let us have a look at a few of those benefits.
Relevance of prenups today
Prenups are tools for preventing future litigation in matrimonial relations. According to 2020 data, around 11.4 lakh cases are pending in the family courts in India. These agreements lower the burden on the judiciary.
Litigation will ultimately decrease if parties have already entered into an agreement governing their position after divorce or separation.
- Imagine having a prenup before marrying! It will clarify financial responsibilities during and even after marriage. Everything will be governed by what is written in the agreement.
- It provides a perfect framework regarding asset distribution, keeping in mind the financial position of both spouses. If a property belongs to both spouses, Sarita and Mehta, the agreement can mention that it will be given to Sarita after separation. Thus, it already solves the disputes that might arise in the future.
- It even provides for the terms relating to alimony and maintenance to be given after the dissolution of marriage. The agreement can mention that Sarita is supposed to provide ₹10,000 to Mehta on separation or divorce (as agreed).
- Did you know that the Hindu Marriage Act, 1955, provides for maintenance to both husband and wife, unlike Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023?
- It protects the interests of children out of wedlock by determining the rules regarding preservation of assets for children or their custody matters.
Sarita and Mehta can create an agreement in which they can mention every minute detail regarding their properties. The present earning status of both parties and assets in their names must be mentioned clearly. The agreement can prescribe the distribution of all the properties and debts, if any, after their divorce or separation.
Further, specific properties are to be given to their children. However, they cannot add any detrimental condition to the other spouse. For instance, decisions regarding child custody are to be made after considering the child’s welfare. The same cannot be decided outright by the spouses beforehand.
If Sarita has significant debt, parties can include a clause protecting Mehta from being responsible for that debt after the divorce.
The question is whether making such a contract before marriage is legally valid. Even if it is valid in certain jurisdictions, can we say that agreeing on specific terms by anticipating a divorce or separation in the future is ethically correct?
These questions intrigue us to know more about such prenuptial agreements.
Prenups and the law- around the world
Prenuptial agreements are not valid and enforceable in every country. However, they are enforceable in almost all countries. Let us see the position of these agreements in different countries.
Common law systems
Do you know that India is a common law country? But have you ever heard about prenups in India? Is this frequently used among couples?
There is no doubt that India follows a standard law system. However, the position of prenuptial agreements in India is quite different compared to other common law nations. What’s the difference?
Under the standard law system, prenups are mostly enforceable in the courts of law. But, it is the discretion of the courts to judge its validity before actually enforcing it. You must comply with specific legal requirements to implement such an agreement. Let us have a look at these necessities:
- The agreement should fully and clearly disclose both spouses’ assets and liabilities. For instance, this information must be disclosed if Ruby is working or has a flat in her name.
- Parties should freely consent to such an agreement. If they did not voluntarily agree, what would be its value or purpose? Consent always remains a prerequisite!
- The terms of the agreement must be fair to both parties. For instance, granting all the rights in all the properties of both parties to one individual might not sound fair!
- The terms should not be against public policy. For instance, provisions on child custody are not considered enforceable. They are to be determined keeping in mind the children’s best interests. You can refer to Section 13 of the Hindu Minority and Guardianship Act, 1956.
United States of America
In the United States, prenups are supposed to comply with the framework provided in the Uniform Premarital Agreement Act (UPAA), 1983. Different States have different rules regarding prenups and their enforceability. It is to be noted that not all States have adopted UPAA. States freely determine their own rules regarding prenups.
However, the conditions to be fulfilled to make a valid prenup are almost the same worldwide. The court generally looks at:
- Transparency and full disclosure by spouses,
- Voluntary and free consent,
- Fair and reasonable provisions,
- Not detrimental to either party.
If Jeff Bezos and MacKenzie had entered into a prenup, the division of the assets might have been different. Further, she might not become one of the wealthiest women in the world by getting 25% of Jeff’s stock.
Did you know that Mark Zuckerberg and Priscilla had a prenup? Priscilla added clauses to ensure weekly date nights and a few minutes of alone time.
United Kingdom
In the United Kingdom, these agreements are not legally binding. However, if the courts consider them fair and reasonable, they have some persuasive value. If courts find them fair, they can enforce such agreements, as was held in the case of Radmacher vs. Granatino (2010).
Again, certain conditions have to be fulfilled to make a valid prenup:
- No duress (voluntariness),
- Full disclosure,
- Fair terms.
Further, the agreement must be in writing and signed by both parties. It is to be noted that the courts have the power to disregard a prenup if it is found to be:
- Unfair,
- Involuntary and unclear,
- Outdated due to substantial changes in the conditions of the parties.
Australia
Prenuptial agreements have also been enforceable in Australia since the Family Law Amendment Act 2000 was passed in 2000. Parties can make these binding financial agreements before, during, or after marriage. Again, the same conditions apply, as we have already discussed above, to enforce a valid prenup.
Courts can set aside unreasonable and unfair prenups if they are made under pressure by any party. For instance, in the case of Thorne vs. Kennedy (2017), the Australian High Court struck down the prenup as it was signed under pressure by the wife.
Canada
Provincial family laws have made prenups enforceable in Canada. Every province has a separate Family Law Act, such as the Family Law Act of Ontario and the Civil Code of Quebec. Courts in Canada also have the option of invalidating prenups if they are unfair or unreasonable.
In Canada, prenups are referred to as “marriage contracts”. For their enforcement, they must meet certain conditions like fair terms, full disclosure, and voluntariness, and must be in writing and signed.
India
However, the situation is quite different when considering the position of prenuptial agreements in India. These are generally not enforceable in India.
Do you know: Marriage is considered to be a sacrament and not a contract in India?
This is one reason why such agreements are generally not enforceable in India. However, there have been cases where the courts have affected prenups. The position in India and a few such cases have been discussed below.
Civil law systems
Under civil law systems, prenups are enforceable in most nations, including Germany, Italy, Japan, and France. The courts emphasise some predetermined legal frameworks when enforcing these agreements. Generally, the courts under this system do not have much discretion when deciding on the validity of prenups.
A few of the requirements under the civil law system governing prenups are:
- Prenups are required to conform to the codified statutes.
- They are supposed to be in writing, signed, and notarised.
- They even require the disclosure of complete account information in a few jurisdictions.
Prenups must be within the confines of the law.
Japan
In Japan, Article 755 of the Civil Code provides for prenups. Further, Article 756 provides for registering such a prenup to be binding on any third party. However, that is not the case when only spouses are concerned. Prenups are required to be in writing and notarised to be legally valid.
Only prenups are valid, but postnuptial agreements are generally unrecognised and unenforceable. According to the Civil Code, prenups can only regulate property matters, not personal relations or child custody.
France
Similarly, in France, the French Civil Code mentions specific rules about marriage contracts under Sections 1387- 1399. Certain conditions must be fulfilled to make prenups enforceable in France. They must also be signed by both parties before marriage registration.
Under French law, are prenups required to be registered? Yes, they must be registered to be enforced against third parties.
Germany
If you remember, earlier, we discussed the requirement of a notary. Germany is one such country that enforces prenups, only when these are formalised by a notary. The prenups are governed by the German Civil Code. Even alterations or modifications are required to be notarised under German law. So, this tells us about the importance of notarisation in such contracts.
Islamic law on prenups
Is marriage a sacrament or a contract under Islamic law? If it is considered a contract, are prenups enforceable under Islamic law? Let us try to answer this!
Under Islamic law, prenups are known as nikah contracts. These are generally valid and enforceable if they abide by Islamic principles. For prenups to be valid in Islamic law, they have to be voluntarily made and comply with the principles under Sharia law. In an Islamic prenup, the following provisions can be made:
- Mahr (Immediate or deferred dower),
- Financial or property matters,
- Right of divorce and compensation thereafter,
- Other housing arrangements.
Our Indian position on prenups
Can you guess the validity of prenups in India? Based on the position in other countries, they might also be enforceable in India. However, that is not the case. Let us know why!
In India, we have different personal laws that govern marriages. We do not have any specific legal framework regulating prenuptial agreements. No Uniform Civil Code (UCC) governs marriages, irrespective of the culture and religion of the parties.
Do you know: Uttarakhand was the first State that implemented the Uniform Civil Code.
Apart from different personal laws prevailing in India, marriage is a sacrament in India, as per the customs and the Hindu Marriage Act, 1955. The idea of prenups goes against the nature of marriage in India. Therefore, courts have been reluctant to favour such agreements.
However, with time and growing cases of divorce, cruelty, and torture, like the recent case of Atul Subhash, India also needs to have regulations regarding prenuptial agreements.
Indian family law and prenups
Have you ever read about prenups in any of the Indian laws? Did you hear about such agreements in your family?
There is no such mention of prenups in any Indian law, whether it be the Hindu Marriage Act, 1955, or the Muslim Personal Law. But, what about Christians?
In the Indian Divorce Act, 1869, as applicable to Christians, courts do not generally recognise prenups while dealing with any divorce matter. However, there have been a few instances where courts have considered them when they are fair, in conformity with statutory provisions, and notarised. The Indian courts have mostly stated that the concept of prenups goes against the ‘public policy’. Now, the question is- where is this public policy clause mentioned?
Section 23 of the Indian Contract Act, 1872, prohibits such agreements as violative of public policy. Section 23 lists specific considerations and objects that are not lawful. Further, a contract cannot be valid unless the consideration and the object are lawful. To learn more about Section 23, click here.
Thus, the position of prenups is ambiguous in India. Different personal laws prevail in India, and other types of marriage are recognised under such laws.
What about the legality under Indian law
Earlier, the courts in India opposed prenuptial agreements as violative of public policy, as was held in the case of Tekait Mon Mohini Jemadai vs. Basanata Kumar Singh (1901). However, with changing times, courts have shifted their approach towards accepting a few prenups between the parties during their separation.
Let us look at the recent case law wherein the court favoured the prenups.
In Shraddha Gupta vs. Sumit Jain (2023), one of the Family Court judges stated that it is now time to make such prenuptial agreements compulsory after counselling the parties about the future risks of the marriage.
Further, in the case of Commissioner of Income Tax vs. Mansukhrai More (1988), the Calcutta High Court accepted the prenup between the parties. The agreement required the husband to transfer his property to the trust so their children might have it after marriage. The court held it to be valid.
After going through these cases, the question that might arise before you is- aren’t we supposed to value the contractual rights of the parties to the marriage? This is the reason why courts have now shifted their approach towards accepting prenups.
Similar is the case of Mohammad Khan vs. Shahmali (1971), wherein there was an agreement about the payment by the son-in-law and the practice of khana-damad. The High Court of Jammu and Kashmir held the practice and the agreement to be valid and not opposed to public policy.
Identification of the key legal considerations for prenups
Now, let us know about the essential legal considerations for prenuptial agreements. We are already aware that prenups are not yet enforceable in India due to specific social and cultural reasons in our country. But, with time, a few judges and even society have started favouring prenups.
Is there a particular format for making a prenuptial agreement? Are there rules for enforcing a prenup? Let’s find out!
If you enter a prenuptial agreement, remember a few general points. Let’s examine them.
Voluntariness
The prenuptial agreement must fulfil all the conditions of a valid contract. The foremost requirement is voluntariness. Can one party forcefully sign the other’s agreement? Of course not! It has to be without any coercion or undue influence. If it is made under coercion by a party, then it is not made voluntarily and by free will and is not a contract per se.
Full disclosure and transparency
What is the primary purpose of entering into a prenup? For distributing assets among the parties after their separation. Thus, the parties must mention full financial details. You have to maintain transparency.
Fair and reasonable
For a prenup to be enforced, the agreement must be fair to both parties; the court will not enforce an unfair agreement.
Written and signed
As we have seen, India does not have a law regulating prenups. However, in other countries, prenups must be in writing, signed, and fulfil state-specific formalities.
Unenforceable clauses
Can a prenup include every possible clause? No, specific clauses, such as illegal terms, those regarding custody of children, or waiver of maintenance, need not be included in any prenup to be enforced.
Full disclosure and consequences of non-disclosure
Sundari and Prem made a prenuptial agreement before marrying. However, they did not disclose their full properties. The court can strike down their prenup as invalid because full disclosure of assets is a prerequisite for a valid and enforceable prenup.
Full disclosure in a prenup ensures:
- Voluntariness or informed consent of both parties,
- Fairness and transparency,
- Enforceability.
Non-disclosure renders a prenup invalid. However, few courts modify prenups rather than strike them down. For instance, if Sundari did not disclose her hidden online business, the court may award Prem a larger share of the properties.
Prenups and their enforceability
The enforceability of prenups varies globally as per customs and law. We have already discussed specific global enforceability standards like:
- voluntariness,
- clear and full disclosure of financial positions,
- compliance with public policy clauses, and
- fairness of the terms of the agreement.
Apart from all these, specific State-specific requirements must be fulfilled to enforce any prenuptial agreement. For instance, in the United States, we have the Uniform Premarital Agreement Act (UPAA), 1983, and parties must abide by its provisions.
Recently, there has been an emerging trend towards acceptance of prenups and greater enforcement in various Western countries.
The position in India is quite different. Due to the sacred nature of marriage in India, these agreements are not binding on the parties or legally recognised. To understand the nature of Hindu marriage, click here.
The next question that might trigger you is whether courts prioritise statutory provisions over private agreements between parties.
The answer is positive, and it is for this reason that courts often do not favour such prenups in India. It is usually argued that prenups are contrary to public policy and thus unenforceable.
Let us also look at a few cases wherein the court talked about prenups:
In the case of Krishna Aiyer vs. Balammal (1910), the Madras High Court noted that such premarital agreements regarding financial statements are not binding as per Hindu law. It was held that such an agreement regarding future separation is invalid and cannot be an answer to the suit for restitution of conjugal rights.
Further, in Bai Fatma vs. Ali Mohamed Aiyab (1912), the court upheld the clause in a Nikah agreement requiring the husband to give the wife financial support after divorce.
In the recent scenario, the courts in India have also started favouring prenuptial agreements. However, the same has been done in some places. The courts considered the high divorce rates and pending cases in family courts in those cases. However, the situation has not completely modernised, and we still do not legally recognise prenups.
What are the different cultural perspectives on prenups
In some societies, marriage is seen as a contract; in others, it is seen as a sacrament. Its nature differs in different religions!
Can we say that the validity of prenups depends upon the nature of marriage in different religions and cultures?
We must know that prenups are generally not considered valid where marriage is regarded as a sacrament, like in Hinduism.
The situation is the opposite, where marriage is considered a contract, like we saw in the case of Christians in India above.
In Western culture, prenups are mostly recognised and enforceable. Similarly, in Islamic or Middle Eastern culture, there are ‘nikah contracts’ that are very similar to prenups and serve the same purpose. These have already been discussed above.
Thus, we can say that many cultures are still reluctant to recognise prenups as they see marriage as a sacrament and a life-long commitment.
Conservative vs. liberal views
As we discussed above, one group views marriage as a sacrament or a life-long commitment, and the other views it as a contract. Conservatives emphasise more traditional marriage values and long-term promises. On the other hand, liberals focus more on individual autonomy and financial equity between the parties.
Generally, conservatives do not favour prenups because of unfair power dynamics, disregard for marriage principles, and anticipating divorce or separation.
However, liberals view marriage as a partnership. They consider divorce a necessary decision, rather than viewing it as a failure. Thus, liberals support the prenups.
Our encounter with the challenges to the validity of prenups
What if a spouse presents a prenuptial agreement before the court during divorce? Can the other spouse challenge the validity of the prenup? There are several grounds on which the validity of a prenup can be challenged. Let us see what these are!
Before that, suppose that Raj and Rani entered a prenuptial agreement. After 8 years of marriage, they filed for a divorce before a Family court. Raj presented the prenup before the court. However, Rani can challenge the prenup through the following legal points:
Involuntariness or proof of coercion
If a party can prove that the prenup was not voluntarily made or that the party signed it forcefully, the court can declare the prenup invalid. Rani can challenge the prenup by proving she signed the document under coercion and not of her own will. This can be demonstrated by showing specific unfavourable terms in the agreement that the party would not otherwise sign.
Incorrect or incomplete disclosure of financial statements
If Rani can prove that the agreement is not transparent enough to disclose all the relevant information regarding the accounts of both parties, the court can declare it invalid.
Unfair clauses in the agreement
Rani can also show that the agreement contains specific unfair and unreasonable clauses that favour Raj more. These terms are detrimental to Rani’s interests, and the court can invalidate the prenup on this ground.
Improper execution or an unsigned document
If Rani can show the court that she has not signed the prenup or the same has not been notarised, the court can invalidate the prenup.
The following important question that arises is whether parties can revoke or modify a prenup after marriage.
Alteration of prenuptial agreements
The answer to the above question is positive. With mutual consent, parties can amend or revoke the prenuptial agreement through a postnuptial agreement.
Unseen picture of prenups
There is no legal framework governing prenups in India. However, it is now essential to recognise the parties’ interests before entering a marriage. The courts have already started accepting such agreements, notwithstanding the sacramental nature of marriage in Indian society.
We have witnessed the growing rate of divorce cases in India and the overburdening of the judicial system. Don’t you think prenups can prove beneficial in such a scenario?
Due to different personal laws governing marriages, these agreements are currently ambiguous. This calls for a comprehensive legal framework to provide clarity on such contracts. The provisions must mandate full disclosure and fairness in the agreements. Prenups, instead of being considered oppressive or manipulative, should be regarded as tailor-made solutions to marital problems, empowering and protecting the parties.
Shift in acceptance of prenups in India
The shift in acceptance of prenups in India is very much evident. Due to the nature of marriage, we have always been reluctant to accept such agreements. However, with time, the courts have shifted their approach towards favouring prenups. With increasing cases and divorce rates, the need for such contracts is being realised.
However, we do not have any legislation explicitly dealing with the validity and enforceability of prenuptial agreements in India. We have looked at various provisions and laws in different jurisdictions regarding prenups. Similarly, there is a need to formulate a potential legal framework considering prenups in India.
Conclusion
Divorce rates have started increasing. In India, the ratio of divorced men rose to 0.5% in 2023-24. However, there is nothing wrong with saying that India has a lower divorce rate than other countries. The Maldives have the highest number of divorce cases in the world.
With this trend, prenuptial agreements play a critical role. Before a marriage, the parties agree to specific terms regarding the distribution of assets and liabilities in case of either party’s separation or death.
In India, this concept is not as evolved as in other nations because marriage is considered a sacrament and not a contract. The formation of a prenup is seen as an anticipation of divorce, which goes against the cultural and social values of our society.
But, does it mean that prenups are not suitable for Indian culture? We can say that these are not suitable in our Indian culture due to the nature of marriage. But it offers a promising and convenient future for both parties and children, if any.
Frequently asked questions (FAQS)
Can a prenuptial agreement be enforced in India?
Prenups are generally not enforceable in India because they are considered against public policy.
What are the essential requirements for a valid prenup?
A few of the essential requirements for a valid prenup are:
- Fairness and reasonableness,
- Voluntariness, and
- Full disclosure of the financial capabilities of both parties.
Are there specific rules for prenups under the Hindu Marriage Act, 1955?
The Hindu Marriage Act, 1955, is silent on prenuptial agreements.
Is it necessary to have a lawyer to draft a prenup?
It is generally not needed. However, it is always advisable for both parties to hire a lawyer to draft an ideal prenuptial agreement.
Can a prenup be modified or revoked after a marriage in India?
Yes, parties can modify or even revoke a prenup after marriage with mutual consent.
What is the primary reason for the non-enforcement of prenups in India?
Since marriage in India is considered a sacrament, any such prenuptial agreements are not enforceable in India.
Is a foreign prenup valid in India?
A foreign prenup is not automatically enforceable as a valid prenup under Indian law. However, if it is valid in that State, it might also be valid and enforceable in India if it does not violate Indian laws.
Is an Indian prenup valid in foreign?
An Indian prenup may become valid and enforceable in a foreign state if the couple registers their marriage abroad. It must fulfil all the conditions of that particular State and align with the local laws in that State.
