Monday, 31 January 2022

Prenups in India- by Vedant Karia at LexCliq

 Prenups in India- by Vedant Karia at LexCliq

A prenuptial, antenuptial, or premarital agreement is a contract entered into by the parties to a marriage or civil union. A prenuptial agreement's substance varies, but usually includes provisions for property division and spousal maintenance in the event of divorce or separation. The Canadian province of Quebec, France, Italy, and Germany all have matrimonial regimes in addition to or instead of prenuptial agreements. In 2007, the UK did not impose prenuptial agreements (although there have been some notable exceptions). They also don't cover marital regimes. Unlike other nations where a proper prenup is legal and binding when a couple separates, the Indian legal system does not recognise this pre-marital arrangement. The value of such legal documentation is hotly debated. A difficult break-up or a traumatic divorce occurs on Earth, not in heaven.

A prenuptial agreement is a contract between the bridal couple that specifies how assets, obligations, and child custody will be divided if the marriage fails. Prenuptial agreements are also known as pre-marital agreements in India.

Pre-nuptial agreements are popular in Europe, where couples wind up insolvent or in a pitiful position. Sir Paul Mac Cartney, former member of the world-renowned pop group Beatles, is still reeling under huge outflow of assets and cash due to his painful breakup with his wife, which resulted in making his wife Heather Mills one of the richest women in Britain due to their pre-nuptial agreement. There are several examples, such as Britney Spears who, after almost three years of marriage, divorced her husband Kevin Federline and had to give up a large portion of her assets due to their pre-nuptial agreement.


A prenuptial agreement defines the fate of finances and personal liabilities if the marriage fails. It protects the guys from excessive divorce payouts. It ensures that nothing, not even a joint account, becomes a topic of contention in the event of a divorce. Some couples now pre-determine issues like child custody to shorten the process when they go to court to resolve their differences. This generation is ambitious, educated, and driven, and they don't want to make a single mistake. Arranged weddings used to provide couples with family security. In an age of fast marriages, it's fine for couples to keep their private lives private.


There is no specific law that addresses the legality or enforcement of such arrangements. Prenuptial agreements are not legally binding in India. However, this does not provide a comprehensive assessment of the significance of prenuptial agreements in general. The prenuptial agreement may be taken into consideration by the court in order to better comprehend the intentions of the couple. If a couple decides to divorce, a prenuptial agreement can assist the court in obtaining an equitable settlement.

In the cases of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh and Krishna Aiyar v. Balammal, the Indian judiciary ruled that such agreements were unenforceable.

Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu. In the following case, the Bombay High Court took the prenuptial agreement into consideration for deciding the separation of the asset

While the legal legitimacy of a prenup continues to be debated, it is more prudent to consider the emotional feasibility of a prenup, which is sometimes viewed as a sign of mistrust or lack of commitment between partners even before to marriage. While society cannot be changed overnight, prenuptial agreements are gaining popularity in India, particularly in the metro regions. Around 20%–25% of couples opt for some form of pre-marriage settlement since it provides them with considerable peace of mind and the confidence to deal with any unforeseen eventualities. One cannot help but notice that in India, pre-nuptial agreements are neither legal nor valid. This is because Indian law does not view marriage as a contractual relationship. It is a sacred tie that binds the husband and wife together. In India, no one anticipates a divorce when two people marry. And it is for this reason that no one contemplates a pre-nuptial agreement. Any arrangement that is in conflict with or contrary to public policy is unacceptable. This simply indicates that a pre-nuptial agreement is still viewed as a danger to the marriage or even to the couple anticipating a break in their marriage.

Vedant Karia


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