Pre Nuptial Agreements as such do not have legal validity in India but they may act as guidelines for the Court while deciding the dispute between the parties.
A Pre Nuptial Agreement or a Pre Maritial Agreement does not have legal validity because it is against the established personal laws i.e. Hindu Law, Muslim Law etc which governs the rights and liabilities of the parties relating to marriage, succession or distribution of property and other personal aspects of an individual’s life. Marriage is not a contract but a social and religious sacrament. Thus the rights and liabilities which law imposes on Marriage upon the parties cannot be surmounted by a pre nuptial Agreement. The Parties cannot by Agreement decide when to separate after Marriage or other such decisions which are regulated by the personal law applicable to the said case.
But even though the Pre Nuptial Agreements are not legally binding upon the parties, they have numerous advantages. They are:
- The Pre Nups are indicative of the intent of the parties which they have expressed out their own free will without any coercive force.
- The Pre Nups have great persuasive value before any Court of Law where the dispute between the parties arises.
- They will lead support to the arguments of any party before the Court. It will prove the bona fides of a party before Court.
- If the terms of the Pre Nups are such as do not contradict with the established law in that regard, the Court may while passing its judgement take into consideration its terms and conditions and incorporate the same in its judgement.
- The additional benefit of Pre Nups will be to dissuade any party to state something completely contradictory to what has been agreed thereunder, as that will result in conflicting stands. The Pre Nups thus have great deterrent effect on the future conduct of the parties.
A Pre Nuptial Agreement can be made just as any other ordinary Agreement. The following requirements must be kept in mind:
- The terms and stipulations of the Agreement must be clear and concise without any ambiguities.
- The position of the parties must be clearly stated with regard to their current financial status, assets and liabilities etc.
- The Agreement must be clear of the precise course to be taken in the event of a separation between the parties with regard to distribution of assets, custody of children, alimony etc.
- It must be signed by both the parties.
- It must be signed by two witnesses.
- It must be made on a Rs. 100 stamp paper and duly notorised.
Some of the clauses that are generally part of Pre-Nups are with respect to the distribution of the assets of the parties, custody of children, division of liabilities with respect to child maintenance, upper limit of alimony or value of alimony, exclusion of certain property etc.
The clauses such as consenting to separation after marriage, taking away right to approach any court for any relief against the other spouse, divorce on demand by the other, no maintenance even if wife has no other means etc are clauses contradictory to law and will not be enforced.