The following blog attempts to provide a nuanced understanding of prenuptial agreements, their pros and cons, their legality, and their prevalence in India.
What is a prenuptial agreement?
The understanding of marriage as a concept of a sacred bond never to be broken off is unique to India. Western countries and their ideas of marriage are somewhat flexible. Divorce is a messier topic in India than the western countries. As divorce is a slippery surface to walk on, the talk of separation disputes becomes rather uncomfortable. In these times, the prenuptial Agreement comes to the rescue. A prenuptial is essentially a contract in which couples about to get married determine their responsibilities and determine how their assets will be divided if their marriage does not work out. Prenuptial or prenuptial agreements are other names, along with premarital agreements. A prenuptial agreement is not a standard agreement. It can be personalized with the specifics that the couple is interested in indulging. But on a widened view, a prenuptial includes distribution of property, custody of the children, or any spousal support.
The Legality of Prenuptial agreements
Marriage laws or personal laws like the Hindu marriage act don’t legalize the prenuptial Agreement; their reasoning is closely related to the sacredness of marriages. Also, weddings for the Hindu Sanatan Dharma are for seven lives that go beyond this life. But the Indian Contract Act of 1972 legalizes the prenuptial Agreement provided they suffice all the essentialities of the contract. Consent and willingness to enter into a prenuptial agreement is a primary condition. While prenuptial is a newer concept in India but younger couples are jumping on the prenuptial bandwagon. While this wave is here to stay, the reservation about the Agreement that points to a possibility of probable divorce or separation remains.
A prenuptial agreement has the following key clauses:
- Separate property: The couple divided their assets to ensure they received their property without delay or legal proceedings even after their divorce.
- The sum that must be paid in the event of a divorce is known as alimony or maintenance.
- Everyone should consider their estate or will strategy in the event of a divorce.
- Ask the couple to define their debts and assets as part of the disclosure of assets and liabilities. This clause is crucial since it has the power to void the entire Agreement.
If specific requirements are met, prenuptial agreements are enforceable. It is far more than just a contractual relationship. The circumstances:
- Fairness and voluntariness are required in the Agreement.
- Both parties to the Agreement who signed it must attest to its legality.
- The contract should have a specific phrase that expressly indicates that the remaining provisions will remain in effect even if one of them is found to be illegal.
- The Agreement should include a list of each party’s assets and liabilities
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- The Agreement must be reviewed and verified by two different attorneys.
- The Agreement must include every clause reached between the prospective parties.
- The Agreement should also include crucial background information about the planned partnership.
- The Agreement must resolve concerns about property division and spousal maintenance in the event of a divorce by listing each party’s assets, obligations, and property rights before the marriage.
Importance of prenuptial Agreement
- Prenuptial agreements guarantee prompt maintenance and allow for the avoidance of high attorney fees.
- After a spouse passes away, provision for maintenance might be made.
- Couples, particularly women, can benefit from prenuptial agreements in the event of illness if one or both parties decide to file for divorce.
- Wives who typically give up their careers to raise children may feel more secure financially.
- A prenuptial agreement can assist in preventing awkward situations, such as disclosing personal information and images while in court.
Prenuptial agreements also have the following advantages:
First off, this arrangement will shield them from one another’s debts.
Second, it guarantees the spouse’s assistance for necessary alimony or maintenance payments.
Thirdly, it also protects rights to remarriage and custody matters.
Fourthly, it guards against the division of one’s firm.
Fifthly, it safeguards the child’s future in the event of a divorce.
The Hindu Marriage Act, which contains a specific provision for maintenance and alimony if either party requests it after divorce, serves as the foundation for all matrimonial legislation. The amount must be paid determined by the partner’s income and assets. The shares and assets are already listed in a prenuptial agreement, making it more straightforward for couples involved in legal disputes. A clear understanding of what to contribute and get if a marriage fails is one of the key justifications for creating a prenuptial agreement. Prenuptial agreements may be legitimate if the couple desires to abide by the terms and conditions. It will reduce the time, the judge’s, and the couple’s workloads.
Conclusion
In conclusion, prenuptial agreements are more accessible for couples to navigate a disastrous divorce. While its acceptability is still a moot point, its advantages are many. Prenuptial agreements fall short on the aspect of commitment; signing a prenuptial can show couples’ inhibition towards their relationship. But, in practical understanding, a prenuptial can save many advocates fees.
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