Is signing a prenup essential before marriage?

433 Views Updated: 30 Apr 2021
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Is signing a prenup essential before marriage?

The most natural extension of love is a blissful legal bond of holy matrimony. When both the parties decide to enter this union, the act stands unaffected by one another’s caste, creed, religion, or race. The procedure to get married in India is different in different religions. The one thing that remains of constant importance in all procedures is the marriage certificate. While the process of getting married is quite simple, the process of separation isn’t. Legal separation or divorce as it is commonly referred to as a procedure undertaken by the court of law to declare on paper that the couple in question have parted ways and are no longer bound by the intuition of marriage.

Divorces are generally unpleasant and include some wild accusations, in the event that the couple’s decision to part ways was not mutual. Here, it becomes increasingly difficult for both the representatives of the legal parties to arrive at an understanding. This increases the financial and emotional burden of both the parties involved. The case goes on for years and the money poured into the proceedings keep mounting. The case eventually ends on a very ugly note for both parties. However, there is a way, via which most of this can be avoided, i.e., signing a prenuptial agreement.

What Is A Prenuptial Agreement?


Prenuptial agreements or prenups are mutually agreed upon documents signed by a couple before their marriage, in the event that they might have to undergo a divorce. This document dictates the distribution of financial assets along with other elements such as spousal and child support. Prenups also save the couples from the mental stress that they go through in the event of a divorce. The simple reason being that in the absence of a prenup, the families of the couple get involved. This elevates the status of a divorce from being just a separation to an all-out war complete with battle strategies on how to tackle the opponent. Therefore, prenups are essential to be signed before a couple exchanges their wedding woes This agreement will be prepared only when both parties involved are serious about their future.

The Legality Of Prenups In India

If you are wondering whether prenups are legal in India or not, surprisingly they are not. In India, marriages are much more than just a legal document. They are a sacred bond of holy matrimony. Our scriptures and ethos foretell great tales that narrate the conquests and sacrifices of married women for their respective spouses. More so, since marriages automatically fall under ‘The Hindu Marriage Act’, prenups are widely discredited and do not hold any value. Additionally, we live in a democratic setup. A democracy that holds signed affidavits by two parties who have made certain declarations in the highest regards. This means if a couple makes certain declarations about splitting their assets, business-related decisions and the custody of their children on a document, that is signed by both parties, it cannot be disregarded in the court of law. If the document is considered solely for what it is, which means a statement that secures speaks about the division of finances and assets. Be warned though, do not violate section 23 of ICA. It is important to take into consideration the separation clause and no child clause that will make the contract void.

Can Alimony Clause Be Included in Prenups?


Prenups are devised to protect the interests of couples. The contract includes important clauses like alimony, etc. Alimony is the most important clause of the prenup and states the amount of alimony that will be given to one spouse by another after considering all the parameters. Either of the spouses are entitled to alimony. The supreme court has set a benchmark of 25% of the ex-husband’s total income. In other words, alimony from either of the spouses ranges anywhere in-between 1/3rd to 1/5th of the total earnings depending on how good they are doing in their respective careers. Alimony also defers depending on how financially superior the spouse is, a splendid career will mean the amount shall increase. If the couple has been married for 10 years or more chances are that the spouse shall receive financial support for the entire lifetime. If the wife is considerably young based on her prospects of being financially independent, the court can grant the alimony for just a short period of time. 

Rate Of Divorces And Its Co-Relationship With Alimony

Divorce rates have been increasing rapidly since the last decade. A dating app by the name Truly, Madly, Deeply stated that they noticed a 200% rise in the rate of users who categorised themselves as divorced. The realisation amongst women that they do not have to be in a failed marriage, disregard for the stigma that comes along with the act of getting divorced, and the increase in awareness amongst people is generally cited as a few reasons why divorces are on the rise. Getting a divorce simply to exploit the spouse and receive alimony isn’t fictional. It is very much possible. This is the exact reason why, in order to safeguard either of the couples from being exploited, a prenup is the best option available.

Can Husband Claim For Alimony?

Couples who have registered their marriage under 'The Hindu Marriage Act', can have either of the partner, husband, or wife demand alimony in the event of a separation. But if their marriage falls under, ‘The Special Marriages Act’, it is only the wife who will be entitled to demand alimony. There are extremely rare instances where the husband has received alimony in the event of a divorce. In the case of an unnamed couple from Mumbai, the husband demanded alimony since he was disabled after a road accident and unemployed. He filed for divorce on the grounds that his wife was mentally torturing him. During his glory days, he used to play cricket alongside Sachin Tendulkar. The court granted the man Rs.10,000/- every month as spousal support basically ruling in favour of the husband. It is known that the court disregards a wife’s plea for spousal support if she is extremely well educated and yet unemployed as the court believes the woman can take care of herself.


The Awkwardness Associated With Discussing A Prenup

Discussing a matter that involves the aftereffects of separation can be awkward for the couple. But the only way to approach it is by ensuring that both parties educate themselves regarding all the aspects of a marriage. This involves life after marriage, the division of household chores, the financial contribution, the timeline to have a child and make investments. It is only after discussing these issues, the topic of a prenup will become extremely logical. The merits of having these conversations are invaluable. On the flip side, this will increase the love and concern that the couple will have for each other as they are working towards a constructive future together.

Prenups For People Living-In Together


Can a couple that is living-in together file for a prenup? The simple answer is no! Prenups are not valid in the eyes of the law. The only valid document would be a signed affidavit stating the conditions for separation. The said document can only come into play if the couple after legally tying the knot decides to separate without violating any laws that fall under the Hindu Marriages Act and the Special Marriages Act. In the event that a couple decides to live-in, there isn’t any legal intervention required to mark their union, neither there is any to mark their separation. It is almost impossible to claim any kind of remuneration on any grounds. This leaves a lot of room for ambiguity. This makes it extremely difficult for any court of law to pass a judgment in favour of either of the parties.

Do Prenups Stand Right On Moral Grounds?

Prenups with the right approach and intent are morally justified. When the conversation about the agreement between the couple is constructive, it sets the right tone for a prenup. To add to this, it all comes down to the understanding between the couple about the kind of relationship they wish to build together.

Prenups Are Especially Known To Safeguard Wealth

There are many reported instances of people getting married to their partner for wealth. Many men and women seek out a shortcut to get rich by marrying someone extremely wealthy. They separate within a short span of time and with that, they appeal to part with a considerable chunk of the spouse’s wealth. The court under normal circumstances will grand spousal support to the partner that doesn’t come from a wealthy background. All of this can be avoided with a prenup. Documenting all the conditions on a signed piece of paper can be a great way to avoid these unfortunate circumstances in the future.


Things To Be Considered While Signing A Prenup 

While signing a prenup, it is essential to determine certain factors. Distribution of wealth, custody of children, controlling interest in case of any joint businesses and so on. Be very diligent while listing down the clauses. They should be described in detail leaving no room for animosity. The document itself should be validated and notarized by a lawyer in the court of law A report suggests that as per 2020, while around 50% of the population are aware regarding a prenup only 40% think of considering it. There are no actual statistics as to how many end up having a prenup.

Postnuptial Agreement

A Postnuptial agreement is an agreement that is signed after marriage by the couple and lays down the technicalities in the case of a separation. The contract isn’t upheld by the court of law. But since it is like any other signed document that is agreed upon by two parties it will be of value. Beware though if not handled sensitively this can be a precursor to a wave of misunderstandings.

Child Custody And Equality


Just like any other matter that is agreed upon in the document, even the custody of the child can be discussed in detail. Who will they live with? their education, financial support and even visitation rights. Declaration of these topics in detail allows the partners to be extremely transparent in the relationship that they will be venturing into. There will be a certain degree of commitment to make the relationship work and ensure that trust will be maintained in the relationship.

Conclusion

Trust and understanding form the basis of any relationship. So, if a couple decides to formalise or legalise this bond, it is essential that everything should be taken into consideration before taking the final step. A prenup indeed being a very thoughtful way to achieve that. Go ahead, get it done.


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