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Will u Marry Me? I will, but first sign the Contract!

  • JWB Post
  •  December 17, 2014

 

Prenuptial agreement is basically a contract that is signed by the two people who are marrying each other. It is done with the purpose of making arrangements for incidents that may occur in future such as division of property in the event of divorce. We all know that in a business, for entering a partnership we need to sign an official agreement between the two partners to give their joint venture legal approval. Since marriage is perhaps the highest form of partnership which is supposed to be life long, many people regard the option of entering into a prenuptial agreement attractive.

What is a Prenuptial Agreement?

A prenuptial agreement is primarily important for the event of divorce in the future. It is often seen that at the time of separation, disputes may rise between the husband and wife regarding the division of property and also about the maintenance and alimony. In most such cases, because of the lack of consensus they often have no options left but to knock at the doors of the court of law. What follows are lengthy court cases over divorce which could go on for years and none of the parties benefit from it. In such cases it is often seen that the person who is at the most losing end is the woman, who along with fighting for her rights in the court also has to battle the rigid society simultaneously. A prenuptial agreement also has different clauses such as ownership of marital house, debts incurred during marriage and share of property for both the spouses.

Can it work for the Indian Woman?

In India, as of now a prenuptial agreement is not legal and valid. It is chiefly because of the fact that in our country it is customary to see marriages as the union very much religious and holy in matter. That is why; prenuptial agreements are still extremely rare in India. However, since an agreement is a contract, the prenuptial agreements can be governed under the Indian Contract Act 1872 like all other contracts. Under the Indian Contract Act 1872 a contract is ‘An agreement enforceable by Law’. Similar to contracts, in case of a breach of prenuptial agreement which is in nature of contract, the affected party can move to court. The Indian court of laws does give some relevance to a prenuptial agreement, but only if it is chalked out in a very clear way and both the parties had agreed to it. Nowadays there is an increasing tendency of depriving a woman from the familial property in case of divorce, by her in laws. In most of these cases because of lack of legal options to explore the person who loses out the most is the wife. In some cases a prenuptial agreement is also useful for women who want to give up a lucrative job or career after marriage. She can discuss this with her partner and create a clause in the prenuptial agreement.

‘Emotional’ Disadvantages

The biggest challenge for a prenuptial agreement is the emotional aspect. Marriage is a union of love, trust and friendship between two people who have decided to spend the rest of their lives together. It is too big a thing to be covered under just one agreement. Additionally in a prenuptial agreement, there are too many assumptions about how the future would turn out for the couple. It is impossible to know the future and that is why it is possible that the very same conditions of the agreement which were included to safeguard the interest of a person are used against her. For example when in a prenuptial agreement it is mentioned that at the event of separation you receive a portion of his property, you cannot overstep this condition at the death of your spouse, when you receive only that much which is specified in the agreement.

Countries where Prenuptial Agreements are legal

In many European countries such as Germany, France, Belgium, Poland and Finland prenuptial agreements are absolutely legal.  However, the courts have the last say as to their legality which varies from case to case.

Our Take

JWB believes that marriage is the celebration of love, and is something which is extremely special for both a man and a woman. However, a prenuptial agreement doesn’t undermine that mutual love and respect in any way and simply makes your vows legal. It’s about time that people in India should think of it more seriously. It could also be a good way to protect the rights of women in marriages which are not very successful and who have to live constantly under the pressure of their spouses.

By Deep Mukherjee,

Columnist

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