NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

FAMILY LAW-I

Project On:
LEGALITY OF PRENUPTIAL AGREEMENTS IN INDIA

Submitted to: Submitted by:

Ms. DEBASHREE SARKAR SONIKA SHIVHARE

Professor, Family Law V TRIMESTER

2014BALLB40

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 ACKNOWLEDGEMENT

I would regard my sincere thanks to my constitutional law Professor DEBASHREE SARKAR

for allowing me to select topic of my choice and continuously guiding me in every aspect of
project. Understanding of new concepts would have been a mere dream without his support and
guidance. I feel great pleasure to cordial thanks to all faculty members of management
department and the prestigious library of NLIU which sincerely supported me with the valuable
insights into the completion of this project and I am thankful to that power that always inspire
me to take right step in the journey of success in my life. Thank you.

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 TABLE OF CONTENTS
INTRODUCTION---------------------------------------------------------------------------------4

PREMARITAL AGREEMENT IN PERSPECTIVE----------------------------------------4-5

RESEARCH METHODOLOGY…………………………………………………………..6

LEGAL REQUIREMENT FOR VALID PRENUPTIAL AGREEMENT……………….7-9

WHY PRENUPTS SHOULD BE ADOPTED IN INDIA……………………………….9-12

ENFORCEABILITY OF PRENUPTS IN INDIA…………………………………………12

PROS AND CONS………………………………………………………………………....13

CONCLUSION……………………………………………………………………………..14

BIBLIOGRAPHY…………………………………………………………………………..15

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 INTRODUCTION
A premarital agreement (sometimes called a premarital contract, prenuptial agreement, or
antenuptial agreement) is an agreement made by two persons about to be married. The agreement
is an effort by the parties to define for themselves rights, duties, and responsibilities that flow
from the marital relationship and that otherwise would be regulated and determined by state law
upon death, annulment, separation, or divorce. What usually happens in a premarital agreement
is that one or both of the parties agree to give up spousal support, an equal or equitable division
of property, or other rights they might be entitled to under state law. Despite past fears that
premarital agreements encourage divorce, they may actually promote marriage. People may
choose to marry who might not do so without the personalized “safety net” or “insurance policy”
the premarital agreement provides in the event the marriage does not last.
PREMARITAL AGREEMENTS IN PERSPECTIVE

In an effort to maintain social order and protect the general public interest, state and federal
legislatures regulate various dimensions of our lives. For example, we have laws and regulations
about education and employment, about finances and business transactions, about children and
families, about marriage and death. Statutes and judicial rulings are designed to balance
individual freedom and protection of the larger society and are based on public policies. Public
policies are ideas or principles that are considered right and fair and in the best interest of the
general public. They reflect current morals and established customs. For example, mandatory
education laws requiring children to attend school until a certain age are based on the broad
public policy that children are vulnerable and need to be protected and provided the foundation
they need to become healthy, productive adults. In response, the state establishes and manages
a public education system to ensure that children receive the education required by law. In
addition, however, we have private and “charter” schools, parochial schools, and “home
schooling” of children as educational alternatives for parents who want to create their own
vehicles for complying with the law, vehicles tailored to their unique goals and needs. The state
still monitors these alternatives to an extent but at the same time recognizes the right of parents
to raise their children as they see fit as long as they do not break the law or violate an overriding
public policy. Public policies that impact various other family law issues are referenced
throughout this text.

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One of the primary public policies that legislatures and courts in the United States historically
have supported is one favoring the marital relationship as the fundamental structural unit of
society. In support of that policy they have legislated and decreed regulations designed to protect
the institution of marriage and the members of the family in the event of death or divorce. These
regulations have been influenced by prevailing societal views about sexual morality, the
vulnerability of children, and gender-related issues including the respective roles and relative
power of men and women in society. In this context, the states were initially unwilling to permit
couples to design their own agreements determining what would happen to their property upon
divorce.
Although courts had, for many years, enforced premarital agreements that addressed property
distribution upon death,1 agreements made in contemplation of marriage that anticipated the
possibility of divorce were viewed as per se invalid until the 1970s. The basic concern was that
the party who would benefit most from the agreement (usually the male partner) would be
motivated to terminate the marriage and the female partner would be left destitute. This
perception has gradually changed over the past four decades along with views about men and
women, fault-based divorce, and the institution of marriage generally. We now live in a society
in which the rate of divorce has risen and few presume that marriage is a permanent union. As
a result, we have an increasing number of individuals, both male and female, taking steps to
develop their own approaches to distribution of property upon divorce or death. A premarital
agreement is one vehicle for accomplishing this end. The opinion in the landmark Posner1 case
describes the shift in public policy from one that presumes the permanence of marriage to one
that acknowledges and enforces, under certain conditions, agreements regulating rights upon the
dissolution of marriage. In Posner, the wife appealed the portion of the divorce decree that
awarded the divorce to her husband and alimony to her in the amount of $600 a month pursuant
to the terms of a premarital agreement between the parties. The wife’s position was that,
consistent with prior case law, the agreement should not be enforced. The court held that such
agreements should no longer be considered void as contrary to public policy when the divorce is
pursued in good faith on proper grounds.

1
Posner v. Posner, 233 So.2d 381 (Fla. 1970)

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OBJECTIVES:
 To learn the prenuptial agreements in perspective.
 To study the enforceability of prenuptial agreements.
 To figure out the pros and cons of prenuptial agreement.

RESEARCH QUESTIONS
 Why prenupts should be adopted in India?
 What are the legal requirements of a valid prenuptial agreement ?

HYPOTHESIS
A prenuptial agreement provides a fair deal to the spouses when they part a ways but why it is
not warmly welcomed in india.

SCOPE OF STUDY
The focus and main aim of the present project is to analyse and find out the legal enforceability
of prenupts in India.

METHODOLOGY
The method of study adopted in this project is doctrinal.

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WHAT ARE THE LEGAL REQUIREMENTS FOR

A VALID PREMARITAL AGREEMENT?

A premarital agreement is both a contract and an agreement between two parties who bear a
special relationship to each other. Unlike contracts negotiated in the business world involving
strangers who deal at arm’s length, a premarital agreement is a contract between two individuals
presumably engaged in a relationship of mutual trust and confidence.
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
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
prospectivespouses.
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.

The Uniform Premarital Agreement Act (UPAA) provides that the parties may also contract with
respect to personal rights and obligations during their marriage, provided the terms do not violate
public policy or existing statutes. The parties are generally free to contract, and may want to
include provisions relating to several aspects of their life together. One or more of these terms
may taint the entire agreement and render it void and unenforceable. An attorney may want to
confirm with the client in writing that there is no guarantee that a particular provision will be
enforced by the courts.

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What You Can Do With a Prenup
A prenup may help if you have one or more of the following goals:
 Keep finances separate. Every state has laws designating certain kinds of assets
accumulated during marriage as marital property or community property, even if these
assets are held in the name of just one spouse. If a couple divorces, or when one spouse
dies, the marital or community property will be divided between them, either by
agreement or by a court. If you want to avoid having some or all of your individual
accumulations during marriage divided up by a court, you can do so with a premarital
agreement.
 Protect each other from debts. Some of us bring debts, as well as assets, to a marriage.
If there's no prenup, creditors can sometimes turn to marital or community property to
satisfy the debts of just one spouse. But if you want to make sure that saying "I do" does
not mean saying "I owe," you can use a prenup to limit your liability for each other's
debts.
 Provide for children from prior marriages. A prenup is helpful (perhaps essential) if
either of you has children from another relationship and you want to make sure that your
children inherit their share of your property. In a prenup, one or both spouses can give up
the right to claim a share of the other's property at death, perhaps in exchange for an
agreed upon amount of property.
 Keep property in the family. If your property includes something you want to keep in
your birth family, whether it be an heirloom or a share in a family business, you and your
spouse can agree that it will remain in your family, and you can specify that item in your
prenup. This can even include property that you expect to receive in a future inheritance.
 Follow through by making your estate plan. In addition to using your prenup to waive
inheritance rights and state your intentions for passing on your property at death, it's vital
that you prepare the estate planning documents -- a will, living trust, and so on -- that
actually transfer your property as you intend
 Define who gets what if you divorce. Without a prenup, state law will specify how your
property will be divided if you ever divorce. These laws may dictate a result that neither
of you wants. You can use a prenup to establish your own rules for property division and
avoid potential disagreements in the event of a divorce. In most states, you can also make

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 agreements about whether or not one or both of you will be entitled to alimony2. Some
states forbid or restrict agreements about alimony.
 Clarify responsibilities during the marriage. In addition to the reasons listed so far,
there are countless other uses for a prenup, depending on your circumstances. Here are
some examples of other matters people include in their prenups:
 whether to file joint or separate income tax returns or to allocate income and tax
deductions on separate tax returns
 who will pay the household bills -- and how
 whether to have joint bank accounts and, if so, how to manage them
 agreements about specific purchases or projects, such as buying a house together or
starting up a business
 how to handle credit card charges -- for instance, whether you will use different cards for
different types of purchases, what kinds of records you will keep, and how you will make
payments
 agreements to set aside money for savings
 agreements for putting each other through college or professional school
 whether you will provide for a surviving spouse -- for example, in your estate plan or
with life insurance coverage, and
 how to settle any future disagreements -- for example, you might agree to hire either a
mediator or a private arbitrator.

What You Can't Do With a Prenup

 Restrict child support, custody, or visitation rights
 Give up the right to alimony, in a few states.
 "Encourage" divorce
 Make rules about nonfinancial matters.

WHY PRENUPTS SHOULD BE ADOPTED IN INDIA

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Alimony is a legal obligation on a person to provide financial support to his or her spouse before or after marital separation or
divorce. The obligation arises from the divorce law or family law of each country. 

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While prenups are common in western countries, they are still not warmly welcomed in the
Indian society. Since marriages have a sacred status ascribed to them, it becomes difficult for us
to weigh them in contractual terms. Then, marriages are affairs of the heart and not of mind, so
what better prenup than trust and love? Also, opting for such agreements invites social stigma
that the couple shares low commitment, and anticipation of divorce even before marriage is both,
bad omen and unromantic.

But, would turning a blind eye towards unfortunate events phase out their occurrence in future?
Would avoiding the issue of prenups nullify the possibility of a breakdown? Hence, it is advised
that couples must keep their emotional strings aside for a while and think practically. Though it
may sound like a business deal, a prenup is a long-term investment. Here are a few reasons why
one must opt for it:

1. Majority of the alimony laws in the country support the female spouse, without even
considering the financial status of the male spouse. But, since a prenup is based upon pre-
determined stipulations which encourage ‘equitable’ flow of assets regardless of gender,
it is gender-neutral in that sense.

2. Since most of the financial issues are already outlined in a prenup, the couple is saved
from legal hassles and bitter negotiations that go into sorting out monetary matters, post
breakdown.

3. None of the alimony laws in the country have a practical arithmetic formula to

determine the sum of alimony, which may differ depending upon various factors (income
of spouses, standard of living, conduct of applicant etc). The sum reflects the discretion
of courts and usually results in being meager. On the contrary, a prenup strives for
equitable distribution and allows both the spouses to have a say in the financial assets
they would receive.

4. In addition to the previous point, it can be argued that a pre-determined scheme of

maintenance prevents the prevalent abuse of Section 498-A of IPC, wherein wives
blackmail their ex-husbands to extort obnoxious sums out of them, under the garb of law.

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 5. Prenups ensure that the spouses are relieved from carrying the burden of each-other’s
financial obligations (like debts) post breakdown.

6. In a society where female property-rights bite dust everyday, prenups are radical
instruments for encouraging women to assert their proprietary rights, and sustain
themselves rather than being left at the mercy of their ex-spouse.

vii. A full disclosure of financial status of both parties prevents possibility of marital frauds,
wherein one party hides its ‘real’ financial background from the other, as commonly witnessed
these days.

Although all matrimonial laws in India have provisions for a wife's maintenance and alimony
(under the Hindu Marriage Act, however, either party can claim it), the amount payable always
depends on the partners' income, property and other circumstances. So it might have helped the
couples who are fighting legal battle , had they declared their assets in the very beginning,
reviewed their financial positions and agreed to a mutually acceptable division of wealth. This is
the primary reason behind drawing up a prenup – so that a person may have a fair idea about
what to give and what to receive if marriage goes kaput. In spite of lacking legal sanctity under
Indian marital laws, a prenup can still be treated as a valid contract if a person and his/ her
spouse consent to go by its terms and conditions. And this will definitely help as he would not
end up paying exorbitant divorce settlements or face a duped-out-of-compensation situation.
While the debate about its legal validity continues, it is better to look at the emotional feasibility
of a prenup, which is often seen as a mark of mistrust or lack of commitment among couples
even before marriage. one can't change the society overnight but prenups are certainly getting
popular in India, especially in the metro cities, Around 20-25 per cent couples opt for some kind
of pre-marriage settlement as it gives them great peace of mind and makes them feel strong
enough to handle all unforeseen circumstances .One can’t help but see that pre-nuptial agreement
is neither legal nor valid in India. This is because Indian laws do not look. at marriage as a
contract. It is a religious bond between the husband and the wife. When two people marry in
India no one foresees a divorce. And this is why no one even considers a pre-nuptial agreement .
Any agreement which is contrary or opposed to public policy is not an acceptable agreement.

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This simply means that a pre-nuptial agreement is still considered like a threat to the marriage or
even the couple anticipating a break in their marriage.

Though divorce is quite common in India now, it is still not considered a possibility before the
marriage and hence there is no thought of a pre-nuptial agreement. There is no talk of a pre-
nuptial agreement at all as a way of a by-plan as far as the legislation is concerned. There may be
a few people talking about the pre-nuptial agreement, but India is far from including it in it's law
and legislation plans. Even though we still have a long way to go before pre-nuptial agreements
are implemented in India it is a way by which couples can protect their assets in case of a divorce
A pre-nuptial agreement helps resolve and simplify a lot of financial and property issues. Since
the division of assets are already done before the marriage, implementing what has been decided
before the marriage makes life simpler .It just comes down to dividing the assets as mutually
decided by the couple and will save nasty arguments later. But a person could get a pre-nuptial
agreement drafted abroad, marry in India according to Indian tradition but the agreement will be
valid in that particular country only.

LEGALITY OF PRENUPTS IN INDIA

Against this backdrop, it becomes pertinent to understand the legal status of prenups in India. In
absence of legislative endeavors and litigation in this field, there are four prevalent views. The
first maintains that they are governed by contract laws and not matrimonial laws, and require the
same conditions as for any other contract under Section 10 of Indian Contracts Act, 1872 (ICA).
[1] The second view negates the first one by claiming that such agreements are against ‘public-
policy’ and hence, void under Section 23 of ICA. While the third view rests its case by arguing
that prenups are nothing more than Memoranda of Understanding (MoU) between the spouses
and therefore, not overtly binding;[2] the fourth claims that under the Special Marriage Act,
1954, a prenup can be granted legally binding status, provided it is submitted along with the
necessary documents as required under the Act for declaration of marriage and then, duly
registered with the Registrar’s office.

However, the general view remains that they cannot be legally enforced, and merely indicate the
intent of parties. Hence, the court can only use them as set of guidelines while pronouncing its
verdict.

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However, the general view remains that they cannot be legally enforced, and merely indicate the
intent of parties. Hence, the court can only use them as set of guidelines while pronouncing its
verdict.

While the legal validity of prenups in India would be an issue for the courts to decide, it should
not be a deterrent for those desiring to opt for them, to step back. In a society witnessing an ever-
escalating divorce rate and rising instances of domestic violence, prenups ensure fair-play by
setting the basic rules before the play begins. It could be understood better in analogy to an
insurance policy- you take it not because you ‘know’ you would meet with an accident in future,
but because you do not want to take the ‘risk’; you want to be insured against the unforeseen and
uneventful- the same goes for a prenup.

PROS AND CONS: PREMARITAL AGREEMENTS (PRENUPTIALS")

PROS

• A premarital agreement can protect the inheritance rights of children and grandchildren from a
previous marriage.
• If you have your own business or professional practice, a premarital agreement can protect that
interest so that the business or practice is not divided and subject to the control or involvement of
your for spouse upon divorce.
• If one spouse has significantly more debt than the other, a premarital agreement can protect the
debt-free spouse from having to assume the obligations of the other.
• If you plan to give up a lucrative career after the marriage, a premarital agreement can ensure
that you will be compensated for that sacrifice if the marriage does not last.
• A premarital agreement can address more than the financial aspects of marriage, and can cover
any of the details of decision-making and responsibility sharing to which the parties agree in
advance.
• A premarital agreement can limit the amount of spousal support that one spouse will have to
pay the other upon divorce.
• A premarital agreement can protect the financial interests of older persons, persons who are
entering into second or subsequent marriages, and persons with substantial wealth.

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CONS

• The agreement may require you to give up your right to inherit from your spouse’s estate when
he or she dies. Under the law, you are entitled to a portion of the estate even if your spouse does
not include such a provision in his or her will.
• If you contribute to the continuing success and growth of your spouse’s business or
professional practice by entertaining clients and taking care of the home, etc., thus allowing him
or her to focus on professional endeavors, you may not be entitled to claim a share of the
increase in value if you agree otherwise in a premarital agreement. Under the laws of many
states, this increase in value would be considered divisible marital property.
• Star ting a relationship with a contract that sets for the particulars of what will happen upon
death or divorce can engender a sense of lack of trust.
• As mentioned above, a contract can take the wind out of your emotional sails.
• It can be difficult to project into the future about how potential issues should be handled, and
what may seem like an inconsequential compromise in the romantic premarital period may seem
more monumental and burdensome in reality.
• A low- or non-wage-earning spouse may not be able to sustain the lifestyle to which he or she
has become accustomed during the marriage if the agreement substantially limits the amount of
spousal support to which that spouse is entitled.
• In the "honeymoon" stage of a relationship, one spouse may agree to terms that are not in his or
her best interests because he or she is "too in love" to be concerned about the financial aspects
and can’t imagine the union coming to an untimely end.

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CONCLUSION
As every concept has its own pros and cons this concept too has some advantages as well. The
prenuptial agreement is characterized by great flexibility and can be tailor-made to the specific
needs of the couple. Although a very practical agreement, there are many who do not see the
need for such a document. It, essentially, is an acceptance of the fact that marriage may not last.
In other words, a person is giving up on his/her marriage before one even get started. In fact, the
couple, who are madly in love and who will soon vow that they will be together always, are
expected to negotiate their own divorce settlement. It is of great interest to note that there was a
recent news item, stating that the Karnataka state women's varsity Vice- Chancellor, Dr Syeda
Akhtar has called upon Muslim girls to sign prenuptial agreements. Dr Akhtar said this
(prenuptial agreement) is the crucial first step which will guarantee a Muslim woman's rights
throughout her marriage. So, a prenuptial agreement can be an important document to enable a
woman to assert her rights and ensure that she is not done out of her just dues.

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BIBLIOGRAPHY

http://www.divorcenet.com

http://www.findlaw.com

http://www.jlaw.com

http://www.legalforms.com

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