PRE-NUPTIAL AGREEMENT IN INDIA

By Team Lawclik

Modern India is steadily becoming a melting pot of differing cultural and legal practices which are changing the social fabric, today. Arranged and love marriages are now increasingly giving way to marriages that are grounded in practicality with a futuristic outlook. This is why pre-nuptial agreements are increasing between couples who plan to spend their lives together. While the Central Government is wary about giving its nod to pre-nuptial agreement, Goa is the only state which has given it a green signal.

Recently, it was reported in the media that the Woman and Child Development ministry has decided to set up a group to study the Goa law, which recognizes pre-nuptial agreement, and see its feasibility. Goa is the only state in India, which provides for such an agreement in its family law but it’s hardly used. Legal experts say that the Indian Contract Act, 1872, is an impediment in the implementation of prenuptial agreements, with Sections 23 and 26 rendering resulting in such pacts to become “void”.

What is a pre-nuptial agreement? Simply defined it’s a form of contract which may be applicable to a marriagecivil union or any agreement prior entering into a contract. Here certain rules are laid down with agreement of both sides which may pertain to responsibilities like money sharing, child responsibilities, division of property, assets, support to spouse in case of a breakup or divorce.

Some of the most common views on pre-nuptial agreements are:

  • It is only an MOU which does not bind either of the side to fulfill any defined obligation.
  • It is a sign of mistrust, right from the beginning of marriage.
  • A pre-nuptial agreement cannot be forced upon anyone.

Typically, youngsters who have studied or worked overseas are veering toward the concept of pre-nuptial agreement. Also easy access to internet and resulting international exposure has also contributed to this growing trend, opine social experts. “The legal system in India has its heart in the right place. But the procedures involved are so time consuming and excruciating that many people lose a large portion of their finances and lives in litigation and resulting misery. This is one of the main reasons why the Indian social system is leaning towards this concept,” said Abhishek Kumar Singh a lawyer. “It is also a tool to create a form of social and mental pressure on both parties to ensure there is no form of harassment following a break up or divorce.”

Benefits of a Pre-Nuptial Agreement

  • Men can use this as a means to protect their hard-earned finances, property and also inheritance.
  • Misuse of dowry laws can be curbed via this practice. This means that women can no longer level false dowry allegations to break up their marriages.
  • Both sides can also agree on equal division of finances and other assets.
  • Even factors like alimony and child support can be drawn up in case of pre-nuptial agreements.
  • Saved from major financial strain of litigation fees and long drawn court proceedings that can extend over years.

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