SPECIAL MARRIAGE ACT, A LEGAL LACUNAE FOR PRENUPTIAL AGREEMENT

DEFINITION:

A prenuptial agreement is a written contract created by two people before they are married. A prenuptial agreement typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.

A prenuptial agreement is entered into before marriage. This agreement can set forth what will happen to you and your spouse’s assets and income in the unfortunate event of divorce, separation or death. Most importantly, a prenuptial agreement can preserve the nature of property in the event the marriage ends. In other words, separate property can remain separate, instead of being subject to community property or equitable distribution laws.

Though after the standard application for understanding of the term “Prenuptial Agreement” one could correspond the term for various definitions provided qua from mediums of dictionaries to get a holistic view of the term discussed.

 

PRENUTIAL AGREEMENT IN INDIA:

The Indian legal system does not yet recognize Prenuptial Agreements as legal agreements. At present in India, there is no categorical law governing Prenuptial Agreements. Although are four views about Prenuptial Agreements in India-

1. They are governed by the law of contracts and not matrimonial laws. They require the same condition as for any other contract under Section- 10 of the Indian Contracts Act, 1872.
2. The other view is that Prenuptial Agreements are against public policy and hence void under Section- 23 of the Indian Contract Act.
3. Some consider Prenuptial Agreements as only a memorandum of understanding and are not binding on the parties.
4. Prenuptial Agreements can be considered binding if the marriage is solemnized under the Special Marriage Act, provided it is submitted along with other documents to the registrar.

Amidst the debate of legal validity of Prenuptial Agreements, importance should be given to emotional feasibility offered by such agreements.

Prenuptial Agreements are seen as a sign of mistrust or lack of commitments among the people, but they help to solve financial and property issues.

 

SPECIAL MARRIAGE ACT:

Prenuptial Agreements can be considered binding if the marriage is solemnized under the Special Marriage Act, provided it is submitted along with other documents to the registrar.

The Special Marriage Act deals with inter-caste and inter-religion marriages. Inter caste marriage is a marriage between people of two different castes. The days had gone by when people used to marry wherever their parents decided to blindly. The youth now have their own saying and choice and prefer to marry someone who is more compatible with them than marrying someone who belongs to their caste or religion. It is them who have to live for the whole of their life with their partner and therefore, caste or religion is not a matter of utmost consideration now at all. 

This information is the most important for every Indian to know how they can use it. This Act includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages. This act applies to all Indian states, except Jammu & Kashmir. This Act applies not only to Indian citizens who belong to different castes and religions but also to Indian nationals who live abroad.

The general understanding is that only marriages are sacred and auspicious which are done in one’s own caste, whereas the legal aspects of it as discussed above doesn’t make marriages any less sacred or valid under this act. Our Law, under its provisions, gives every citizen the right to marry and have a happy life with any person of their choice. But many support this opinion and criticize it. Some people think it’s valid; some don’t. The effect of arranged marriages on love marriage has brought about this situation which, even after judgments and laws have been passed more frequently in this regard, has not brought about a major change in the mindsets of people who support marriages within religion and caste.

Under section 28 of the Act, which deals primarily with provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce may be filed with the District Court by mutual consent.

That under the Special Marriage Act, 1954, a prenuptial agreement can be granted legally binding status provided it is submitted along with the necessary documents as required under the Act for the declaration of marriage and then, duly registered with the Registrar. Although prenuptial agreements are invalid in India, they may be used for the purpose of evidence and reference.

 

LEGAL OPINION ON PRENUPTIAL AGREEMENT:

In the case of Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu, the Bombay High Court considered the terms of the prenuptial agreement to reach a conclusion regarding the separation of assets. However, prenuptial agreements are allowed under the Portuguese Civil Code that is still applicable in Goa, in respect of the personal laws relating to family matters.

 

AN IDEAL PRENUPTIAL AGREEMENT:

The special marriage act cover the ground as to how an agreement can be made enforceable in India, though as it stands as an agreement there are certain other condition necessary which makes it a valid and hence applicable to Indian law.

The most important attribute of a agreement is that it should be able to suffice the reason for which it was drafted and therefore expectedly the prenuptial agreement should contain some essential points, like:

 

Common Rights and Responsibilities in a prenuptial agreement

Prenuptial agreement creates certain rights and liabilities on the part of both spouses, which may pertain to the duration of the marriage or the stage where the marriage has been dissolved. These are contained in the clauses of the agreement and are enforced under the national contract laws. Although each prenuptial agreement differs in its clauses, as per the circumstances under which the couple is tying the knot, there are certain clauses that are common and can be found in almost every such agreement:

 

Separate Property

It is to be understood that all property acquired and owned in the duration of the marriage, irrespective of the spouse in whose name it has been so acquired or owned, belongs to both spouses, and will be considered marital property. Due to this characteristic, this property will be liable to be divided between the spouses in case of dissolution of marriage. To avoid this, the spouses can enumerate certain properties or classes of properties which will be considered their separate property and will remain in their sole possession even after the dissolution of the marriage.

 

Shared Property

Similarly, the spouses are free to enumerate the property or the types of property which will be considered to be co-owned and hence, marital property. Such property will be liable to the division on dissolution of marriage since each spouse has a share in it.

 

Earnings in the duration of the Marriage

The earnings of the spouses in the duration of marriage are generally shared to fulfill the expenses of the household, and therefore, after the marriage is dissolved, the earnings may be ordered to be shared with each other. To avoid this scenario, the spouses may enter a clause in the agreement stating that all their earnings will be considered their separate property of each spouse, subject to the responsibility towards alimony and maintenance.

 

Custody of Children

This is another clause which can reduce the burden of family law litigation in the courts, as it will definitively determine the custody of the children borne out of the marriage. However, the clause may not be enforced if the circumstances under which the agreement was made can be shown to have changed.

 

Maintenance of Prior Children and Parents

Another clause that is commonly included in case of second marriages, or if the spouse has living parents, is that a part of their property, whether marital or separate, will be used to maintain their children from prior marriages, and their parents, respectively.

 

CONCLUSION:

There are many other benefits of a prenuptial agreement, it can protect a person from his/her partner’s debt loads, prevent one’s business/estate from getting divided it can ensure spousal support in terms of monthly maintenance or alimony.

Guarantee remarriage rights and take care of child support and custody issues. All it requires is free consent and an honest declaration of individual assets and liabilities. But the crux of the matter lies elsewhere. Unlike most countries where a valid prenuptial agreement is legal and binding when a couple separates. Unlike popular belief, a prenuptial agreement pact is not meant for the rich and the famous alone.

As every concept has its own pros and cons this concept too have some advantages as well. The prenuptial agreement is characterized by great flexibility and can be tailor-made to the specific needs of the couple. Although a very practical agreement, there are many who do not see the need for such a document. It, essentially, is an acceptance of the fact that marriage may not last. In other words, a person is giving up on his/her marriage before one even gets started. In fact, the couples, who are madly in love and who will soon vow that they will be together always, are expected to negotiate their own divorce settlement

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