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Article by ARUNIMA JHA
Category Law Students

In the age of instant marriages, divorce is becoming quicker. A pre-nuptial agreement is considered as a threat to the marriages as well as the couple anticipating a break in the marriage. A pre-nuptial agreement is also known as a pre-marital agreement.

A pre-nup is an agreement made between a couple that's about to get married that outlines the fate of finances and personal liabilities in case the marriage fails. In the case of the guys, it protects them from exorbitant divorce settlements. In the case of individual earners, it makes sure that nothing, not even a joint account, can become a point of dispute in case of a divorce. These days, some couples are even pre-determining matters like custody of a child

It is a legal contract between prospective husband and wife foreseeing the divorce. Though it is not so popular in Indian Society, it acts as a mechanism to protect the assets and finances during the time of the divorce. It has been advocated by some that pre-nuptial agreement are neither valid nor legal in India. However pre-nuptial agreements are valid in India as they are governed by the Contract Laws and not by the Marriage laws.

Under Section 10 of the Indian Contract Act, the pre-nuptial agreements have as much sanctity as any other contract, oral or written. Where both the parties have mutually agreed to enter into a pre-nuptial agreement, the Courts do take cognizance of the same. However the problem is that the Indian Courts haven’t given total recognition to such agreements.

In western countries, pre-nuptial agreement is a common trend. Many countries like Germany and France have matrimonial regimes in lieu of pre-nuptial agreements. However Indian Legal System does not recognizes pre-nuptial or pre-marital agreement. It is gaining popularity in India also. In cities like Mumbai and Delhi, nearly 20 percent of the marriages are estimated to be a pre-nuptial agreement. Couples opting for it are just not financially unequal couples, or wealthy couples, but also those who want to avoid financial entanglement and trauma.

Naturally for a prenupt agreement to be valid, both the parties must sign it voluntarily and without any undue influence, coercion or duress. Most of the entitlements under the divorce law in India are governed by the personal laws of the parties -- the Hindu Marriage Act, 1955, as amended by the Marriage Laws (Amendment) Act, 2001; Muslim Personal Law, or Indian Christian Marriage Act, 1872 -- as the case may be. The Special Marriage Act, 1954, governs inter-religion marriages. Irrespective of the applicable law, a prenup can ensure an equitable division of assets.

Prenupt has been in existence in Europe and Far Eastern Countries for about a thousand years from now in some form or the other. It was basically done in royal or rich families to protect their wealth. A few countries like France, Italy and Germany have matrimonial regimes in place of pre-nuptial agreement.

In many parts of Europe, pre-nuptial agreements are held to be legally enforceable in divorce cases provided that both parties received sound legal advice and signed up to the pre nuptial agreement without being coerced or bullied into doing so. In the UK, it has been very different. Pre-nuptial agreements have been set aside by the family court when deciding how to settle marital income, capital or pensions upon divorce. It is left to the discretion of the court to decide what is appropriate and whether the terms of a pre nuptial agreement should be upheld or not. Unlike the U.S. and most European countries, English law does not generally recognize prenuptial contracts. The example can be seen in case of Katrin Radmacher, a 40-year-old paper industry heiress with a fortune of at least 55 million pounds ($82 million), and French investment banker Nicolas Granatino who married in 1998. They had two children and separated eight years later. He was awarded almost 6 million pounds in a divorce settlement. But in the year 2010, the Court of Appeal slashed Granatino's payment, ruling that he had promised in a prenuptial agreement not to make a claim on his wife's fortune.

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, as well as it will reduce the fraud or honeymoon Marriage by Men. That means, if the both party are genuine, transparent and do not have any pre-planned ill mind, will accept the same before marriage itself.

 The Prenuptial Agreement cannot counter Section 498A IPC at all, but may reduce the damage caused by misuse of the law by Legal Terrorists. Some of those people, who refuse to see dangers and consequences of false 498A or Domestic Violence Act cases and brush aside the truth, thinking nothing is going to happen to them, may find this as cheap insurance policy like medical Insurance, which is not very popular in India.

There are many other benefits of a prenup: it can protect you from your partner's debt loads; prevent your business/estate from getting divided; ensure spousal support in terms of monthly maintenance or alimony; guarantee remarriage rights and take care of child support and custody issues. All it requires is free consent and an honest declaration of individual assets and liabilities.

But the crux of the matter lies elsewhere. Unlike most countries where a valid prenup is legal and binding when a couple separates, the Indian legal system does not recognize this pre-marital agreement. In fact, the concept has gained wide social acceptance over the past five years but till date, it is not a legally valid pact as per the laws of our country. 

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