PRE NUPITAL CONTRACT

In India, Prenuptial Agreements Are Not Governed by the Indian Marriage Laws, but by the Existing Contract Laws

Lawyers estimate that almost 20 per cent of marriages that take place in the metros, especially in Mumbai and Delhi, involve some form of prenup. "Couples opting for prenups are not just financially unequal couples or wealthy couples, but even those who simply want to avoid the financial entanglement and trauma that follows a divorce," says Anand.

"The problem, however, is that Indian courts have not totally recognised the validity of prenuptial agreements," says Indranil Bose, partner (litigation) ,Fox Mandal Little, a Delhi-based law firm. The Indian law defines what marriage is and agreements such as these do not fall into that definition. So they are not deemed valid.

"In India, prenuptial agreements are not governed by the Indian marriage laws, but by the existing contract laws," says Duggal.

"Under Section 10 of the Indian Contracts Act,prenuptial agreements have as much sanctity as any other contract, oral or written; just because litigation has not begun in this area does not mean that it has to be treated any differently, and that it cannot be enforced.

Courts do take cognisance of a prenuptial agreement if both parties have mutually agreed, are competent to contract, and the prenuptial agreement clearly states the fair division of property, personal possessions and financial assets of the parties," he argues.

"A big advantage of a prenup is that it forces couples to have that all-important financial discussion before marriage," says Anand.

She adds that issues that can be efficiently dealt with in a prenup range from divorce settlements, if the case arises, and the prevention of disputes regarding joint accounts to the custody issues of the children after the dissolution of a marriage. "Another important benefit of the prenup is that it offers protection from the spouse's debts, if any."

For couples about to take the plunge, it is perhaps wiser to go in for a prenuptial agreement that clearly outlines a fair division of property, personal possessions and financial assets, than fight over a favourite piece of furniture or pet in the process of dissolving the marriage.