Insights by: Sumit Kochar & Shammi Khanna
Introduction
A prenuptial agreement, often referred to as a “prenup,” is a written contract made between a man and a woman before they marry, in which they state how their assets such as property and money should be divided if they get divorced.[1]
Status of Prenuptial Agreements in Various Jurisdictions
Prenuptial agreements remain a prevalent legal instrument across different regions worldwide. Legal frameworks surrounding these agreements diverge from one jurisdiction to another, specifying the conditions under which a prenuptial agreement may be deemed non-binding. Such circumstances may include instances of fraud, undue hardship, or insufficient disclosure of financial assets. Several jurisdictions of note are discussed below:
- United Kingdom (UK): In the case of Radmacher v. Granatino,[2] the Supreme Court of the United Kingdom addressed the legality of a prenuptial agreement that sought to restrict spouses from asserting claims to each other’s assets in the event of divorce. The Supreme Court determined that prenuptial agreements do not contravene public policy and are legally permissible provided neither party is unjustly treated as a result. A presumption of fairness prevails unless proven otherwise.[3] The Court outlined three critical elements for a prenuptial agreement’s lawful recognition:
All parties to the contract must possess the legal capacity to enter into it.
Both parties must fully comprehend the implications of the agreement.
It should be reasonable to expect the parties to adhere to the terms of the agreement under the prevailing circumstances. - Singapore: Traditionally following English law, Singapore disallowed prenuptial agreements. However, in the case of TQ v TR and another,[4] Singapore’s highest Court of Appeal affirmed the legality of a prenuptial agreement governing property division upon divorce. It was established that foreign agreements, executed by foreign residents and not conflicting with Singaporean civil policy, merit due consideration. The Court emphasized that any marital arrangement, whether prenuptial or post-nuptial, pertaining to property distribution or spousal maintenance, is subject to judicial scrutiny. The validity of a prenuptial agreement is determined by its applicable law, and compliance with contract law standards is imperative for enforceability.[5]
- Australia: In Australia, the Family Law Amendment Act 2000, for the first time, rendered prenuptial agreements, commonly referred to as “binding financial agreements,” legally enforceable.[6] Part VIII A of the Family Law Act prescribes specific requirements for the regulation of such agreements by family law practitioners. A court can nullify a prenuptial agreement in various scenarios, including situations where independent legal counsel was not obtained or provided before agreement execution, non-disclosure of assets, unconscionable conduct, duress, among others.[7]
These legal frameworks and conditions underscore the diverse treatment of prenuptial agreements across different jurisdictions, reflecting variations in legislative and judicial approaches.
Prenuptial Agreements in India: Legal Considerations and Challenges
Prenuptial agreements are not constitutionally valid in India,as there are pre-existing laws which dictate maintenance to either spouse, in case the spouse is incapable of maintaining themselves after divorce. Provisions such as given under Section 125 of CrPC, Section 24 of Hindu Maintenance Act, 1955 provide for maintenance to spouse incapable of independent income. Moreover, Section 23 of Indian Contract Act dictates, If the thing stipulated for is in itself contrary to law, the action by which the execution of the illegal act is stipulated must be held as intrinsically null: pactis privatorum juri publico non derogate,[8] which means private agreements do not derogate from public rights.
There are two exceptions to this rule: (a) Prenups are legal in Goa as it follows the Portuguese Civil Code and (b) Prenups are legal in case a marriage takes place under the provisions of Special Marriage Act, 1954 and the said agreement is delivered along with other necessary documents and registered with the registrar.
Prenuptial agreements are recognized as valuable instruments of delineating spousal rights in the course of subsistence of marriage as well as in its termination, have garnered acceptance within the Indian judiciary over time. Such acceptance has prompted legislative efforts to address pertinent matters. Given the emotional and financial complexities inherent in divorce cases, disputes often result in protracted legal battles, leading to financial losses, time consumption, and heightened stress. Contemporary couples must acknowledge the possibility of divorce, necessitating the use of prenuptial agreements to facilitate separation proceedings efficiently.
In India, prenuptial agreements are recognized in specific contexts, notably within Christian personal laws. These laws empower district courts to examine the existence of prenuptial agreements and reference their terms when determining property settlements. It is essential to dispel reservations regarding prenuptial agreements stemming from religious sentiments, particularly within the Hindu faith, which holds marriage in high regard. Prenuptial agreements should not be construed as contrary to religious principles and marriage sentiments. However, it is vital to ensure that agreements align with prevailing public policy standards, as contracts violating public policy are inherently void.[9]
Historical judgments have illustrated instances where agreements overly restrict spouses, rendering them void on public policy grounds. In Tekait Man Mohini Jemadi v. Basanta Kumar Singh,[10] the Calcutta High Court declared void a prenuptial agreement that prevented the husband from relocating his wife from her mother’s residence and required him to heed the wife’s mother’s instructions unconditionally. This decision underscored that prenuptial agreements should serve legal purposes rather than enable biased and unwarranted restrictions.
Similarly, in Khatun Bibi v. Rajjab,[11] the Allahabad High Court declared void a prenuptial agreement that compelled the husband to reside solely in the wife’s house, emphasizing that such restrictions infringed upon the husband’s liberty. It is noteworthy to assess analogous scenarios wherein prenuptial agreements are employed by men to impose residency restrictions, particularly in rural areas, and whether such agreements align with Indian societal and cultural norms.
Regarding financial aspects, prenuptial agreements specifying a fixed sum to be paid to the wife upon divorce were deemed violative of public policy and void by the Madras High Court in Krishna Aiyar v. Balammal.[12] Moreover, the Bombay High Court, in Bai Fatima v. Ali Mahomed Aiyab,[13] declared void a prenuptial agreement entered into by a Muslim couple, citing public policy concerns that such agreements encouraged divorce and separation.
In the case of Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu,[14] the Bombay High Court the terms of the prenuptial agreement to reach a conclusion regarding the separation of assets. However, prenuptial agreements are allowed under the Portugese Civil Code that is applicable in the state of Goa, in respect of the personal laws relating to family matters.
In one of the recent judgements, before the Family Court,[15] in Mumbai a divorce was granted to a 53-year-old man who had been in a marriage lasting only 33 days since their union in 2016. The court’s decision was notable as it recognized the presence of a prenuptial agreement, even though such agreements are not legally enforceable in India. The court considered this agreement as a means to understand the intentions of the parties involved. The man had sought a dissolution of the marriage on the grounds of cruelty. The court made the observation that, given the relatively mature age of both parties, they had likely anticipated certain circumstances and mutually agreed to separate. The court remarked, “The agreement shows the parties agreed to enter into partnership, and it was not a relation till last breath. This was the foundation of the relation.” The man informed the court that after his divorce from his first wife, he had met the woman online in 2009. Their communication resumed in 2012, a period during which he faced emotional distress due to the loss of his father and younger brother between 2012 and 2013. The man stated that the woman emotionally coerced him into marriage by asserting that her mother’s health was deteriorating due to her unmarried status. He further explained that despite his objections and fragile emotional state, pressure from the woman’s mother led to their marriage in July 2016, followed by separation in September of the same year. In essence, the court’s decision recognized the existence of the non-enforceable prenuptial agreement as a means to shed light on the parties’ intentions and the nature of their relationship. While prenuptial agreements are not legally binding in India, this case demonstrates how courts may consider them as evidence of the parties understanding and expectations when determining divorce proceedings.
While there is observable progress in the judicial acceptance of premarital agreements, legislative gaps and public policy considerations pose uncertainties regarding the enforceability of such agreements in courts. Although efforts are being made to recognize the role and impact of prenuptial agreements within the Indian legal system, the government remains cautious about granting them legal status, calling for further deliberation.
Addressing resistance to prenuptial agreements, some argue that legalizing them may lead to spouses seeking an easy way out of marriage, potentially undermining the institution of marriage itself. Contrarily, Muslim laws regard marriage as a sacrosanct contract. Which in effect means such marital contracts cannot be treated as ordinary contracts under law. Even Hindu law treats marriage as a civil contract along with it being a sacrament.
Despite the potential benefits of prenuptial agreements in Indian, the absence of comprehensive legal regulation and guidance impedes their effective use. It is imperative to consider the regulation and incorporation of prenuptial agreements into the Indian legal framework to provide clarity and protection for the community. Thus, we advocate for a serious examination of the regulation of prenuptial agreements in India to address the current ambiguity surrounding their legal status.
Conclusion
In today’s society, characterized by a high rate of relationship breakdowns, the adoption of prenuptial agreements is a prudent choice. While prenuptial agreements are widely acknowledged and practiced in Western countries, they are yet to gain full acceptance in India. The Indian community, as a whole, is still in the process of understanding and interpreting the significance of such agreements.
There has been a growing trend of prenuptial agreements among capitalists and affluent families in India. The introduction of this approach in the Indian context has the potential to foster amicable methods for resolving marital disputes. Prenuptial agreements can be tailored to meet the unique needs and expectations of Indian couples, offering a framework for addressing various aspects of marriage. However, the absence of clear and comprehensive legal statutes on the subject poses challenges to their effective utilization. Urban areas in India have witnessed an increasing interest in prenuptial agreements, as individuals recognize their potential to proactively address matrimonial issues and contingencies that may arise unexpectedly. It is important to emphasize that prenuptial agreements, when crafted thoughtfully, do not undermine Indian culture or public policy. Instead, they can serve as a need of the hour, addressing the evolving dynamics of contemporary relationships.
In conclusion, while prenuptial agreements are a valuable tool for couples to navigate the complexities of modern marriages, their acceptance and legal framework in India are still evolving. As more awareness is raised and legal clarity is provided, prenuptial agreements have the potential to play a constructive role in fostering healthy and transparent marital relationships in Indian society.
[1] https://www.collinsdictionary.com/dictionary/english/prenuptial-agreement
[2] Radmacher v Granatino 2010 UK SC 42
[3] https://www.barandbench.com/columns/are-pre-nuptial-agreements-enforceable
[4] TQ v TR & Anr [2009] 2 SLR(R) 961
[5] Wai Kum Leong, ‘The Law in Singapore on Rights and Responsibilities in Marital Agreements’ [2010] Singapore Journal of Legal Studies 107
[6] FAMILY LAW AMENDMENT ACT 2000 NO. 143, 2000 – SCHEDULE 2 – Financial Agreements’ (Austlii.edu.au, 2022) http://classic.austlii.edu.au/au/legis/cth/num_act/flaa2000194/sch2.html
[7] https://www.gotocourt.com.au/family-law/thorne-v-kennedy-prenuptial-agreements-bad-contracts-poor-behaviour/
[8] Arg., 4 Cl. & F. 241; Broom’s Legal Maxims, p. 541
[9] Rishabh Tiwari, Prenuptial Agreements in India, IJARIIE-ISSN(O)-2395-4396, Vol-4 Issue-5 (2018).
[10] Tekait Man Mohini Jemadi v. Basanta Kumar Singh, (1901) ILR 28 Cal 751
[11] Khatun Bibi v. Rajjab, AIR 1926 All 615
[12] Krishna Aiyar v. Balammal, (1911) ILR 34 Mad 398.
[13] Bai Fatima v. Ali Mahomed Aiyab, ILR 1913 37 Bom 280
[14] Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu (2016) 6 Bom CR 567.
[15] https://timesofindia.indiatimes.com/india/prenup-not-valid-in-india-but-can-indicate-intent-court/articleshow/104269789.cms?from=mdr
