Is there a method to safeguard your property by a prenuptial settlement earlier than your wedding ceremony? A prenup pact will help you solely to a restricted extent. This is as a result of there isn’t any formal laws on prenuptial agreements in India.
A prenup settlement is a contract signed by a pair earlier than they get married and determines the possession rights of their respective property if the wedding fails later. In case of a divorce, the division of property and alimony payout to the partner occurs as per situations laid down within the prenup settlement. Prenups are prevalent in international locations just like the US and Australia and slowly gaining floor amongst Indian {couples}. However, it isn’t authorized in India.
“Pre-nuptial agreements have historically been perceived as being towards public coverage. While Indian tradition continues to put emphasis on the standard nature of marriage, it’s plain that the angle in the direction of marriage has been evolving. Today, spouses are extra comfy demarcating and defending property acquired by them previous to marriage,” mentioned Jahnavi Dwarkadas, affiliate accomplice, SNG & Partners.
As there are not any formal legal guidelines on prenups, the phrases and situations laid down within the contract are usually not legally binding and the validity of these situations, in case of a dispute raised by both of the partner, are lastly determined within the courts. In any case, the prenup situations can’t override the authorized rights of a partner, say authorized consultants.
“In the absence of any formal laws governing pre-nuptial agreements, the legislation on the topic is basically judge-made,” Dwarkadas said. “All pre-nuptial agreements are tested against the touchstone of public policy as any contract against public policy is considered invalid. Any agreement that ignores statutory rights and obligations would be deemed invalid. For example, agreements that pre-determine aspects of custody of children, or deprive a spouse of the statutory right to maintenance and alimony, have been struck-off by courts as being against public policy and are therefore invalid.”
Adarsh Priyadarshi, advocate, Supreme Court of India, quotes one other instance and says: “As per Hindu marriage legal guidelines, a spouse has a authorized proper to reside in her matrimonial home. So, any situation within the prenup settlement that claims the spouse can’t reside within the matrimonial home if the wedding fails is superseding the legislation and shall be null and void. A prenup can’t supersede an individual’s statutory rights.”
Priyadarshi, who focuses on prison legislation together with these arising out of matrimonial disputes, added that Hindu marriage legal guidelines contemplate marriage a sacrament and don’t deal with it as a contract, and therefore, a prenup might not be helpful in figuring out division of property or the alimony quantity upfront.
“So far, our studying from our expertise in such issues has been that the pre-nuptial settlement ought to be seen to be one which promotes marriage versus facilitating a breakdown,” mentioned Dwarkadas.
Muslim legal guidelines comply with mehr or dower that imposes an obligation on the husband to provide cash or property to his spouse. A prenup will be helpful in figuring out the mehr quantity.
That mentioned, Dwarkadas mentioned, over time, the judiciary has been taking a look at such agreements extra liberally, recognizing the private rights and preferences of companions and inspiring the evolution of matrimonial legal guidelines.
People eager on a prenup settlement ought to lay down the situations fastidiously after consulting their legal professionals. The sole intent shouldn’t be to withhold property from the partner as that will end in a contract denying both of the partner their rights.
“It is essential that the settlement doesn’t deprive both get together of any statutory proper out there below legislation or pre-decide issues resembling custody of kids,” mentioned Dwarkadas.
“The proposed settlement ought to document that it’s being entered into to reduce battle in monetary issues. Further, the settlement ought to clearly establish and document particular person and joint property of each the events in addition to the rights that one partner might have on the opposite’s property within the occasion of a breakdown.”
