You have valid concerns. Execution of such agreement is possible if the intention are legal and within the framework of law.
Pre-nuptial agreement
Sir/madam, I would like to ask regarding my daughter. She met a boy (Indian working in IT in Dubai) on the matrimonial site and is in talks of getting to know him more. I have a concern as she is an only child and we have settled some property is her name. As the boy’s financial status isn’t of the same level as us, I am concerned that he or his family should not harass my daughter if this union ends up in marriage. Could you please advise any legal arrangements to make ? Would it help to go for a pre-nuptial agreement? Kindly advise. Thankyou
Asked 3 years ago in Family Law
Religion: Muslim
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7 Answers
- As per law, prenuptial agreement is neither legal nor valid in India , because Indian laws do not look at marriage as a contract , but as a religious bond between the husband and the wife.
- Further, any agreement which is contrary or opposed to public policy is not an acceptable agreement.
- Hence legally you cannot predict and enter into an agreement on such clauses before the marriage.
Pre nuptial agreement would not be enforceable
in event your daughter is harassed after marriage she can file domestic violence case , dowry harassment case against husband
Pre nupital agreement has no force in the eye of law in India.
Therefore irrespective of the terms of the agreement if there is cause of action cases can be filed in India.
Dear Sir/Ma'am
The Indian legal system does not yet recognize prenups as legal agreements. At present in India, there is no categorical law governing prenups. In India, since marriage isn't considered a contract, it is very rare that you'll see or hear a couple getting a prenup.There are four views about prenups in India-
1. They are governed by the law of contracts and not matrimonial laws. They require the same condition as for any other contract under Section- 10 of the Indian Contracts Act, 1872.
2. The other view is that prenups are against public policy and hence void under Section- 23 of the Indian Contract Act.
3. Some consider prenups as only a memorandum of understanding and are not binding on the parties.
4. Prenups can be considered binding if the marriage is solemnized under the Special Marriage Act, provided it is submitted along with other documents to the registrar.
However, Courts in India will consider a prenup valid only if both the parties have mutually agreed and signed it voluntarily without any force, undue influence, or threat.
1. But the agreement should be fair and duly acknowledged by both parties. It should be certified by attorneys of both parties.
2. A list of assets and liabilities of both spouses must be attached along.
3 A clause that states that even if a certain provision is null and void, the other provisions would still hold legal and valid, should be mandatorily be covered in the prenup.
4. The prenup should contain details of the agreed issues like maintenance/alimony, division of assets, and liabilities in case of dissolution of marriage that both the parties have decided together.
Thank You
If at all you are not sure of the credential of the bridegroom, you may carry out a thorough background verification about the bridegroom and his family members.
In India, since marriage isn't considered a contract, it is very rare that you'll see or hear a couple getting a pre-nuptial agreement..
Under the Muslim Laws and to an extent in Christian Laws, marriage is considered to be a contract between the marrying couple, and with that contract comes certain automatic property rights for each spouse.
However, in case of divorce or separation both the spouses, struggle with the hearings of their case in court, hurling accusations on each other, pinning the blame on the opposite party, all so that the person may get to pay less amount of money as alimony and it is here that the importance of a prenuptial agreement comes into play.
It is basically an agreement in writing between Two spouses which states that in the event of death or divorce or separation what will be the monetary liability of the respective spouses.
In simple words it lays out the proportion of property, assets and money each of them will get if the marriage is dissolved.
A prenuptial agreement must contain few of the following clauses -
- Disclosure of assets and liabilities
- Financial or monetary position
- Real estate properties
- Shared properties
- Division of properties
- Separate properties
- Alimony or maintenance
- Child custody & Maintenance
- Life insurance, Medical insurance, Claims
- Management of bank accounts or joint accounts Management of household expenses, bills, etc
- Gifts in the form of jewelry, engagement ring, precious wedding bands, art, etc.
The prerequisites for a pre-nuptial agreement are -
1 The prenup should be fair, reasonable and duly acknowledged.
2 The prenup should be certified by attorneys of both the parties.
3 A list of assets and liabilities of both the spouses must be attached along.
4 A clause that states that even if a certain provision is null and void, the other provisions would still hold legal and valid, should be mandatorily be covered in the prenup.
5 The prenup should contain details of the agreed issues like maintenance/alimony, division of assets and liabilities in case of dissolution of marriage that both the parties have decided together.
The advantage of having a prenuptial agreement is that it creates a clear-cut reference on the liability both partners hold in case of a Divorce or Separation.
The prenuptial agreement may create soreness between the marital relationship of husband and wife if only one spouse insists for it, as Indians consider marriage to be above materialistic aspect of life.
Despite a prenup being a valid contract there are certain clauses in a prenup that can be nullified by a court viz clauses that
1) Encourage dissolution of marriage
2) Enforcing 'No Child' provision (if any)
3) Specify a certain Religious upbringing of children
4) Contain waivers with respect to Spousal support or maintenance both temporary or permanent, counsel fees, child custody or child support and maintenance
5) Require for a certain conduct during marriage
6) Cap the grounds for getting a divorce
in India prenuptial agreement is not valid as it is not a contract.
