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The correct terminology is prenuptial Agreement!!
Many people end up calling prenuptial agreements as prenup, prenups, marital prenup, nuptial agreement after marriage, pre nap agreement, pre phase, pre wedding agreement, prenup document or prenupitals.
What is prenup or prenuptial agreement?
Definition of prenuptial agreement: A prenuptial agreement is define as an agreement between a man and a women planning to marry that determines the legal rights, responsibilities, liabilities and obligations each of the person has during the course of marriage.
A prenuptial agreement is also often called as prenup or prenup agreement or antenuptial agreements, or premarital agreements. Prenupital meaning in simple terms is an agreement before getting married. In prenuptial agreements the man and woman planning to marry in consultation with each other and with help of prenup agreement lawyer mutually decide how they want to discharge their liabilities during course of marriage and how their joint property will be divided in the event of divorce or the death of one of the spouses. Such written agreement between a man and a women planning to marry with their mutual consent and understanding is called as prenup or prenup agreement or antenuptial agreements, or premarital agreements.
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Is a prenuptial agreement valid and legally binding in India?
In India the marriages are governed by Hindu Marriage Act 1955, Dissolution of Muslim Marriage Act, 1939, Mulla’s Mohammedan law, Indian Divorce Act 1869, Parsi Marriage Act 1936, Special Marriage Act 1956, Foreign Marriage Act 1969, etc.
In India under Hindu laws marriage is not a contract, it is a sacred alliance of a man and a woman, however, under Christian and Muslim Laws marriage is a contract between the marrying couple. Hindu Marriage Act, 1955 does not recognize a prenuptial agreement to be legally valid; however a fairly drafted prenup agreement is governed under the Indian Contract Act, 1872.
Since long time, Family Courts in India would not enforce prenuptial agreements. The marriage laws have traditionally favoured marriage. The lawmakers and judges conceive a prenuptial agreement to encourage divorce, so the lawmakers would not pass any act to approve them and the judges would not legally enforce them. However, with the simplified divorce procedures and high divorce rate in more modern times, lawmakers and judges finally came to accept reality and started considering a fairly drafted prenup agreement.
Since marriages are governed by various matrimonial laws in India, many people do not fully understand their legal rights, responsibilities, liabilities and obligations when they marry. The legal relation created through marriage is often ignored until the time for divorce comes. This is when the couple realize that it is easy to get in to marriage but very difficult to get out of it. The death of a spouse can also cause various legal problems with the couple's property and finances if proper estate planning is not done with help of Estate Lawyer.
It is observed that in case of divorce cases husband and wife both struggle with their divorce case hearings in Family Court to end their disharmonious marriage. During hearing couple mostly ending up in accusation, allegation and blames on each other for settlement of key issues like Alimony, Maintenance, Residence, Streedhan, Child Custody, Child Visitation, Child Support, Distribution of joint property, allocation of debt, withdrawal of other civil or criminal cases and this is where a prenup or a prenup agreement or an antenuptial agreement or a premarital agreements comes for the helps of the litigating couple to decide upon various key issues.
Now a day’s prenuptial agreement between marrying couples have become a household terminology and more and more educated and financially independent couples are seeking help of prenup lawyer to draft airtight prenuptial agreement or ironclad prenuptial agreement to have common understanding between them so as to safeguard their future and interest.
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Common prenuptial agreement clauses:
A prenup agreement must be fairly drafted to support the marriage between the couple. A prenuptial agreement consisting of biased terms and conditions renders its operation invalid. Utmost care has to be taken to ensure that the terms and conditions of a prenuptial agreement must not be against the public policy or against the law of land. If prenuptial agreement clauses are against the public policy or against the laws enacted by marriage acts in India, the prenup agreement shall be rendered ineffective and cannot be legally enforceable in Indian court of law.
A prenup agreement must have following basic clauses:
* Disclosure of assets and liabilities of both parties.
* Disclosure of educational qualification of both parties.
* Disclosure of earnings and financial capacity of both parties.
* Disclosure of Immovable properties.
* Disclosure of movable properties.
* Disclosure of health.
* Disclosure on how joint properties shall be bought after marriage.
* Disclosure on how joint properties shall be divided on divorce or death of spouse.
* Alimony or maintenance payable at time of divorce.
* Child custody, child support and child visitation.
* Life insurance & Medical insurance.
* Operation of joint bank accounts.
* Allocation of debts.
* How to manage of household expenses, bills, etc.
* List of gifts proposed to be exchanged during marriage in compliance to Rules 2 and 3 of the Dowry Prohibition (Maintenance of Lists of presents to the Bride and Bridegroom) Rules, 1985.
* Amount to be contributed by parties towards marriage and other function.
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Key aspects of a prenuptial agreement
* Both parties should have attained majority and should be of marriageable age as per the law of land.
* Both parties should be of sound mind to understand the terms of prenup agreement and the consequences thereof.
* Consent given by both parties should be out of their free will and without any force, coercion or fraud.
* The prenup agreement should be fair and reasonable.
* A prenup agreement should be in written, signed by both parties in front of atleast 2 witnesses from both sides.
* A prenup agreement should be duly authenticated and endorsed by prenup agreement lawyers of both the parties.
* A prenup agreement should be drafted in duplicate.
* List of assets and liabilities of both the parties must be annexed.
* Educational qualification certificates of both parties must be annexed.
* Inclusion of severability clause.
* Inclusion of force majeure clause
* A prenup should contain post marriage mutually agreed settlement of key issues like Alimony, Maintenance, Residence, Streedhan, Child Custody, Child Visitation, Child Support, Distribution of joint property, allocation of debt, etc.
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Prenup pros and cons :
* A prenuptial agreement pre-determines the legal rights, responsibilities, liabilities and obligations each of the person during the course of marriage, death, divorce or separation.
* Protection of rights of children from current and previous marriage.
* Protect the future, assets and interest of spouse during the course of marriage, death, divorce or separation.
* protect the spouse with zero debts or liabilities, from adding up liabilities / debts of other spouse.
* with pre-settled key issues like Alimony, Maintenance, Residence, Streedhan, Child Custody, Child Visitation, Child Support, Distribution of joint property, allocation of debt the couple can opt for dissolution of marriage by mutual consent instead of contested divorce.
* Prenup agreement helps decide who gets what at the time of divorce, separation and death.
* International prenuptial agreement helps to protect the future and interest of spouses in other countries where it is widely accepted and legally enforceable.
There are as such no disadvantages of a prenuptial agreement however it is the mind set of people in India that deters the couple to consult prenup agreement lawyers for smooth functioning of marriage in highly ambitious and competitive times. People in India lack openness and communication abilities and thus are afraid to mutually come forward for drafting a prenup agreement. Even today idea of prenup agreement tends to create negative impression in the mind of people in India as they assume prenup agreement support divorce and their marriage may not last for long.
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Airtight prenuptial agreement or ironclad prenuptial agreement:
Despite drafting airtight prenuptial agreement or ironclad prenuptial agreement there are certain terms and conditions in a prenup that can be termed as void by a court:
* The prenuptial agreement must be made before solemnization of marriage. Prenuptial and postnuptial are different terms and have different operations in legal sense.
*The prenuptial agreement is likely to promote divorce.
* The prenup agreement was written and signed with the intention of divorcing.
* One party was forced into signing the prenup agreement.
* The prenup agreement was created unfairly.
* Inclusion of clauses which are against public policy like enforcing 'No Child'.
* Provision, waiver of spousal maintenance, alimony and streedhan.
What happens when there is no prenuptial agreement?
Peace of mind is one of the reason for prenuptial agreement. If there is not prenuptial agreement between the couple then marriage laws, code of civil procedure, limitation act, succession laws, transfer of property act, etc determine who owns the property that have purchased during your marriage at time of divorce or death.
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