Legality of Pre-Nuptial Agreements at Crossroads in India

The buzz over the divorce of Hardik Pandya, an Indian cricketer, and Natasa Stankovic, a Serbian model, created about their pre-nuptial agreement, both among the sportspersons and the public alike.

As part of the agreement, Natasa can seek a substantial 70% of Pandya’s assets. However, none of the duo made any statement confirming the divorce or the claimed settlement agreement.

However, the issue prompted advocates to take a keen look at the legal stance of pre-nuptial agreements in India. India presents a different landscape, in contrast to many Western nations where pre-nups are quite common and legally implemented.

Experts say that the pre-nuptial agreements, although not absolutely illegal, do not have strong legal backing in India due to the dominance of personal laws over civil contracts in marriage-related problems.

For example, Hindu, Muslim, and Christian personal laws, that govern most of the population, do not officially acknowledge pre-nuptial agreements. As a result, these contracts rarely hold up in court if challenged.

While speaking to Business Today, Ankur Mahindro, Managing Partner, Kred Jure, said:

Prenuptial agreements are void under Section 23 and other provisions of the India Contract Act, 1872, and other applicable laws, even though they would have been the most effective way to protect each party's asset base. Prenuptial agreements are considered immoral and against public policy in India, and as such, they are not legally forced here.

In contrast to many other countries, India (except Goa) does not have the concept of estate distribution, particularly when it comes to self-acquired properties of one spouse to another. Nevertheless, both parties of a divorce proceeding have the right under the law, to request financial support in the form of maintenance pendente lite, permanent alimony, final maintenance, or any other available relief.
The wife also has a right to seek compensation for domestic violence subjected to upon her, right to residence and a lifestyle commensurate to the one enjoyed prior to the matrimonial discord. The custodian parent can also seek maintenance for the children from the non-custodial parent.
However, in a mutual consent divorce, the spouses are free to agree on the terms of separation and all claims arising from it, including alimony, maintenance, custody, guardianship, and other claims of a similar nature. In a contested divorce, a spouse is usually granted interim maintenance while the proceedings are being adjudicated, after that, the court may or may not grant alimony at the time of passing a divorce decree, depending upon the facts of such a case.
In conclusion, one spouse does not automatically acquire the right to seek a share of the other spouse's self-acquired property. However, the court may order one spouse to give the other spouse housing or to make maintenance payments in lieu of such accommodations, based on the specifics of the case. Further, the court may order one spouse to pay the other maintenance on a monthly basis or award lumpsum alimony to the spouse at the time of separation. The children have the right to request a share of the ancestral property, which they automatically inherit at birth.

If a spouse dies while the divorce is pending, the surviving spouse may still be able to inherit a share of his real estate if the deceased died intestate, meaning they did not leave a will or other testamentary instrument. Therefore, even though the property is safeguarded while the spouse is living, it is wise to draft a will that specifically forbids granting the other spouse a share of the immovable property in order to preserve the property when the spouse passes away.

While speaking to Business Today, Sneha Bhogle Kale, Partner, Accord Juris LLP, said:

The prenuptial agreements are not customarily recognized in India, but as weddings and divorces get more complex, courts here are starting to accept them. Prenuptial agreements are a good idea for possible couples to protect their assets in the event of a divorce or separation. These agreements have the same legal weight and serve the same purpose as standard contracts under the Indian Contract Act of 1872. However, because marriage is regarded as sacramental in India, they are not recognized under personal laws.

These kinds of agreements protect wealthy and inherited individuals from suffering large asset losses in the event of a divorce. Recent rulings by the courts highlight how crucial prenuptial agreements are for newlyweds. For example, a ruling from the Patiala District Court emphasized how important it is to mandate and register prenuptial agreements prior to marriage. By defining the parameters of alimony, maintenance, and child protection, prolonged divorce proceedings can be avoided.

Legalizing and upholding prenuptial agreements is essential in today's changing culture to ensure fair asset distribution and save time.

( Source : Deccan Chronicle )
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