How to Draft a Prenuptial Agreemnet

A Prenuptial Agreement popularly known as a prenup, is made by a couple intending to get married. A prenup focuses on laying down the terms and conditions related to the aspects involving financial assets, custody, visitation rights, maintenance etc. in the event the said marriage falls apart. Enforceability of such agreements bears a big question mark in India.

Wed Jun 22 2022 | HLL Knowledge Series | Comments (0)

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A Prenuptial Agreement, commonly known as a “pre-nup” is a pre-marital agreement between two people who are about to tie a knot or get into a legally binding wedlock. The concept of prenups emanated in the western countries and is gaining recognition all over the world including India. In India, a marriage is considered as a pious union of two individuals and hence, usually people are hesitant to talk about or even mention about pre-nups at the time of marriage or even before as it deals with the implications at the time of divorce.

A pre-nup focuses on laying out terms regarding the distribution of financial assets, and properties, etc., if by chance, eventually the marriage fails. It establishes a clarity as to what either of the individuals can claim, based on their mutual understanding and agreement if, eventually they are divorced.

While drafting a pre-nup, the following can be included to avoid any disputes/ misunderstandings at a later stage-

  1. Disclosure of individual assets and liabilities –The prenup must state the assets and debts owned by both the individuals and their distribution in case of failing of the marriage.
  2. Children from previous marriage –As any child born to  either   individual from a previous marriage will affect the distribution of assets, it is important to include such details in the pre-nup.
  3. Jointly owned assets –If there are certain properties which are owned jointly by the individuals or if they plan to own an asset jointly, the distribution of such assets should also be specifically incorporated.
  4. Ancestral properties-The individuals can mention the family properties and their respective share from such property.
  5. Decisions regarding work life and marital obligations-The expectations should be clearly mentioned to avoid any arguments at a later stage. For example, in  case of a transfer of a job from one city/state/country to another for  either  individual, what course of action is to be opted  should be stated.
  6. Decisions regarding maintenance/alimony and custody of the child-Some major decisions regarding the custody of the child, amount of maintenance, alimony etc, must be stated in a Prenuptial Agreement.

Since India doesn’t have a law governing or defining the Prenuptial agreements, it is considered to fall under Section 10 of the Indian Contract Act, 1872, which states - All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. But, according to Section 23 of the ICA, any agreement which is immoral or is entered into in contravention with or opposed to the public policy shall be void. As of now, Goa is the only state in India where prenuptial agreements are recognized and enforceable since it follows Portuguese Civil Code, 1867.

Hence, as of now, prenuptials do not have any validity in India. However,  two individuals if willing to, can execute a prenup before getting into the marriage as it will reduce future cost of litigation, hours of coming to a settlement, and the risk of divorce suits,  if the important issues are pre-determined.

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