Isn't it time for PreNup's to get legally recognized in India ?

“Time has come to make compulsory prenuptial agreement”

Looking towards to the recent trends in India in respect to divorces as a Law Practioner , I have been observing the current disputes in matrimonial journey are due to many direct and indirect reasons.

The very first prenups date back to ancient Egypt! Back then, prenups were verbal or written contracts establishing the property that each spouse would bring to the marriage.

What is a Prenupital Agreement?

Prenuptial agreements, sometimes known as "prenups," are legally binding contracts that a couple enters into prior to marriage. The terms and conditions pertaining to finances and property that will take effect in the event of a divorce, separation, or death are often outlined in this agreement. Prenuptial agreements, an idea that originated in the West, are meant to safeguard each spouse's unique rights and assets while outlining the conditions of their financial connection with the other. They also serve to clarify the couple's financial decisions both before and after marriage. Prenuptial agreements are growing in popularity and significance in today's society because of the rise in divorces involving wealthy persons.

A Family Court Judge of the Patiala House District Courts in a recent judgment, bearing HMA No. 181/2023 [names concealed owing to confidentiality of parties] made a glaring observation stating “Time has come to make compulsory prenuptial agreement to be executed before appointed authority after counselling of the parties about the possible rigsk of marriage going haywire for variety of reasons and making it mandatory to report breach every time breach occurs under intimation to the party allegedly at fault, making it further clear that if breach not reported he/she would not be heard later on that he/she did not report thinking that she/he would improve.”

In Indian law, prenuptial agreements, or "prenups," are frequently deemed unenforceable for a variety of legal and cultural grounds.

The following are the main causes of this:

1. Lack of Statutory Approval Absence of Specific Law: Prenuptial agreements are not expressly recognized or enforceable under Indian law. There is no established legal structure for prenuptial agreements in India, in contrast to the USA or the UK, where these agreements are regulated by particular statutes and case law.

2.Marriage Laws: Prenuptial agreements are not mentioned or made provisional for the execution of them under Indian marriage laws, which include the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and other personal laws regulating various communities.

3.Public Policy Concerns: Prenuptial agreements may be viewed as being against Indian public policy. Indian courts frequently give marriage purity and maintaining family unity top priority. Contracts that provide for a divorce or separation may be seen as weakening these principles.

4.Family Law Principles: In contrast to the provisions of a prenuptial agreement, Indian family law principles place a strong emphasis on maintenance and alimony to safeguard the spouse's and children's financial security after the divorce.

Constraints and Difficulties for Couples could be :

• Emotional Impact: Drafting a prenuptial agreement can be an emotionally taxing procedure that strains a relationship.
• Change in Circumstances: Over time, events may occur that make the prenuptial agreement's terms unjust or out of date, which could give rise to legal challenges.
• Public Perception: Some people could think that having a prenuptial agreement indicates a lack of faith or confidence in the union.

Prenuptial agreements, in general, can help couples set clear expectations and safeguard their financial interests. To make sure it is reasonable, enforceable, and consistent with the goals of both parties.

Can India legal Ecosystem legalize this? Will Uniform Civil Code will be hampering it ?

Particular Law: To acknowledge and control premarital agreements, India may enact particular laws. This would entail outlining the precise terms and circumstances that make these agreements enforceable and legitimate.

Modification of Current Laws: Prenuptial agreements could be included in current marriage laws, such as the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954.

Judicial precedents: By establishing a corpus of case law that acknowledges and upholds premarital agreements, Indian courts may establish guidelines for similar situations in the future.

Rules and Protections:

Fairness and Equity: Provide rules to guarantee that prenuptial agreements are just, equitable, and freely signed by both parties.

Enforce comprehensive Financial Disclosure: To avoid agreements based on inaccurate or deceptive information, require both parties to provide full financial disclosure.

Independent Legal Advice: To fully comprehend the ramifications of the agreement, make sure both parties have access to independent legal advice.

Prenuptial Agreements and the Uniform Civil Code (UCC)

Overview of the Uniform Civil Code: Uniformity in rules: The UCC seeks to establish a single body of rules that all citizens, regardless of religion, can follow regarding marriage, divorce, inheritance, and other family-related issues. This will replace individual laws that are based on religious conventions.

Legal Consistency: It aims to guarantee equality before the law in personal affairs for members of various faith groupings.