Pre-Nuptial Agreement: An Expression Of Adult Autonomy

A Pre-nuptial agreement is a sort of agreement laying out conditions, between future husband and wife, regarding disputes that may arise in the case of dissolution of marriage.

About Pre-Nuptial Agreement

Black's law dictionary defines Pre-nuptial Agreement (prenup) as:-

“An agreement made before marriage usually to resolve issues of support and property division if the marriage ends in divorce or by the death of a spouse…also termed as an antenuptial agreement or ante-nuptial contract, marriage settlement, pre-marital contract, pre-marital agreement.”

In layman terms, a Pre-nuptial Agreement is a sort of agreement (which takes the form of contract when it satisfies the essentials of Indian Contract Act, 1872) laying out conditions, between future husband and wife, regarding disputes that may arise in the case of dissolution of marriage. It is different from a marital agreement in the sense that prenuptial agreement is entered into before the marriage but a marital agreement is entered into after marriage. Sec.40 of Indian Divorce Act, 1869 recognises prenuptial agreement and thereby is part of our legal framework though a lesser-known one.

India does not entertain the concept of a Prenup

Courts view prenup suspiciously, mainly because a prenup protects the interest of the wealthy spouse and obviously because it appears to promote break up of a marriage.

Hindu marriages are considered a sacrament, not subject to dissolution and from this logic, a prenup can never be accepted under it but in Muslim marriages, marriages are considered a contract and hence any agreement regarding mutual obligations, finance division etc. will not necessarily be unacceptable, even a clause of bigamy will not make a pre-marital agreement invalid. Same is the case for Parsi Marriage which is considered a civil contract.

A prenup provides financial clarity as well as keeps the finances of each spouse separate or at least demarcates what will belong to whom in an event of dissolution of marriage. The view is that prenup should be confined to financial liabilities of spouses but the fact is that is not the only bone of contention between husband and wife, child-rearing, asset division, the fear of infidelity, various contingencies like death and consequences of that happening etc. form contention too.

Let's weigh the pros and cons of a Pre-Nuptial Agreement against each other:-

Pros

1. It clearly defines the division of assets, financial liabilities, the share of either of the spouse in an increase in the fortune of other spouses, any maintenance that a spouse will be liable to give to the other spouse.
2. The rights of children regarding inheritance etc. can also be dealt with in the prenup.
3. In cases of one spouse being a big businessman or in any profession, a clear division of who will get what share may be done beforehand as well.
4. One can agree in a prenup about the details that each spouse may consider in marriage regarding important decisions or any responsibility that they will be sharing during the subsistence of their marriage.
5. To deal with the complication of the second marriage and the effect this re-marriage will have on the children or assets etc. from a previous marriage, a prenup clearly defining their entitlements can be entered into.
6. Ensures financial security of women, when it comes to India, where most of the women are house-makers, do not work outside the house.
7. A prenup is a good option for those would-be couples too who live in different jurisdictions.

Cons

1. Often times, there can be an overlook on certain points that come to notice only on dissolution, since you have already agreed to be bound by a prenup, nothing to the contrary can be done now.
2. Again, being an agreement regarding let's say inheritance, you become bound by it, any personal law that may have applied or that could have been more beneficial for one of the spouses cannot be availed now(barring anything illegal, immoral etc. agreed to in the prenup.
3. The very obvious con about a prenup is since it is pre-marital, asking to enter into it is indicative (for many) of a lack of trust in the other spouse and the thought that the marriage can, in fact, break at some point, no forever (which is definitely not how you would want to start a marriage, it is a bond of trust.). Also, it somewhere in the mind fixes an idea of impending dissolution of marriage.
4. Another very obvious one is that period before marriage is “so in love” period and can be manipulative leading to an agreement heavily influenced not by reason but feelings of the heart.

If you have become accustomed to a certain way of living, even though you had limited means before marriage, if an agreement is there leading to a lower share not enough to indulge that way of living, there is nothing that can be done now.

Encourages divorce or avoids the responsibility to pay maintenance etc. for e.g. a clause to live separately in a prenup was held to be invalid by Madras High Court and hence any such clause shall be declared void but Doctrine of Severability for enforcement of rest of the valid contract can be applied here.

In Radmacher v. Granatino [2010] UKSC 42, the Court upheld the prenuptial agreement the couple entered into prior to the marriage, “…due respect for adult autonomy suggests that subject of course to proper safeguards, a carefully fashioned contract should be available as an alternative to the stress, anxiety, and expense of a submission to the width of the judicial discretion…”

In an article on The Hindu, it was written that more people are separated in India as compared to the divorce rates mainly because of the divinity of marriage or for the fact that it takes years before claims of spouses in a court of law are decided. A prenup might help in such situations.

Marriage is not only two people coming together; it’s a bond of trust, bond that reflects a life to be shared together, through all ups and downs.

It's all well and good till that love phase exists, but when reality strikes in the form of finances, that’s when it hits you. Fact is, apart from being a bigger commitment to love, in a way, marriage is sharing of the profits and loss as well, be it monetary or otherwise.

Conclusion

A prenup should be a thoroughly well-discussed document, each point mutually agreed to without emotions getting the best of you. Practicality is the need here. And frankly, marriage depends upon compatibility with the partner, if you hesitate in discussing such very important aspects of your life, then you need to work a lot to make you ready for the institution of marriage that is not doomed for dissolution.

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Related Link

1. Women and Child Rights
2. Concept of Marriage under Hindu law