ABSTRACT
Prenuptial agreements have gained popularity worldwide, but in India, they remain a contentious issue due to cultural and legal perspectives that view marriage as a sacred and lifelong bond. Under Indian personal laws, any contract that anticipates the dissolution of marriage is often considered against public policy and void, as it undermines the sanctity of marriage. This reluctance stems from the belief that such agreements could encourage separation rather than preserving the union.
However, with the rising divorce rate in India, societal views on prenuptial agreements are beginning to shift. Divorce, once rare, is now more common as individuals prioritize personal well-being. The prolonged and often contentious divorce process, taking an average of six years, highlights the need for a more efficient approach. Prenuptial agreements could address many of the issues, such as asset division and alimony, that arise during divorce proceedings, reducing emotional and financial stress. Moreover, prenuptial agreements can help protect against fraudulent or malicious claims, which have been a concern in matrimonial disputes. By clearly outlining terms in advance, these agreements can minimize the risk of exploitation.
While prenuptial agreements are still viewed with skepticism in India, their potential benefits are increasingly recognized. Clear guidelines to ensure fairness, such as full asset disclosure and protection against undue influence, could help ease societal concerns. Educating the public about the advantages of prenuptial agreements could help shift perceptions and integrate these agreements into Indian legal frameworks, benefiting both spouses.
Keywords: – Prenuptial Agreement, Divorce, opposed to public policy, sacredness of marriage.
INTRODUCTION
In India, the institution of marriage has traditionally been deeply intertwined with family involvement and cultural rituals, reflecting the country’s rich heritage and value system. The typical process often begins with the groom’s family visiting the bride’s home to discuss and finalize the match. These discussions extend beyond the couple to include an assessment of family compatibility, shared values, and the alignment of gotras (lineages). Once a match is agreed upon, the families collaboratively plan the marriage ceremony, covering everything from the venue to the rituals. These arrangements, though informal and culturally driven, carry the essence of mutual understanding resembling the foundational idea of a prenuptial agreement, where expectations and responsibilities are defined.
The Oxford Dictionary defines a prenuptial agreement as “an agreement made by a couple before they get married in which they say how their money and property is to be divided if they get divorced.” [1]However, the scope of such agreements has expanded far beyond just provisions for divorce. Prenuptial agreements can include detailed clauses about various aspects of married life, such as financial responsibilities, family planning, and even lifestyle agreements. For instance, a New Mexico couple, Rex and Teresa, drafted a 16-page prenup outlining weekly expense allowances, fuel purchases, and even a schedule for “healthy sex.” As Lex Galley, a proponent of such agreements, aptly states, “Nobody plans to fail, but a lot of people fail to plan.”[2]
Globally, prenuptial agreements are often seen as pragmatic tools for safeguarding individuals’ mental, emotional, and financial well-being. They bring clarity and security to marital relationships, ensuring that both partners are protected against unforeseen circumstances. Such agreements are particularly valued in cases of divorce, as they help mitigate conflicts, reduce emotional distress, and prevent one spouse from exploiting the other.
In India, however, the acceptance of prenuptial agreements faces significant cultural resistance. Hindu traditions, for example, regard marriage as a sacred and eternal bond. The mere discussion of separation is considered antithetical to this belief, leading many to dismiss prenups as unnecessary or even inappropriate. Conversely, Islamic law treats marriage as a contractual relationship, incorporating the concept of “Mehar” a mandatory payment to the bride that offers financial security in case of divorce. This highlights that while some cultural frameworks have embedded contractual elements in marriage, others remain resistant to formalizing such agreements.
With changing societal norms and increasing awareness, younger generations in India are beginning to see the value of prenuptial agreements. The growing emphasis on individual rights, particularly women’s rights, is reshaping perspectives. Historically, marriages in India were expected to last a lifetime, often at the expense of personal happiness or safety. Divorce was stigmatized, and many remained in unhappy or abusive marriages due to societal pressure. However, as education levels rise and mindsets evolve, more individuals are prioritizing mental, emotional, and physical well-being over outdated expectations.
The increasing divorce rate in India further underscores the need for prenuptial agreements. These agreements provide a protective framework, particularly in cases involving false allegations, financial exploitation, or prolonged legal battles. Without a prenup, individuals risk losing their assets or enduring years of emotional and financial strain. While prenuptial agreements may challenge traditional notions of marriage, they represent a step toward more equitable relationships. By enabling partners to enter and exit marriages with dignity and respect, prenups promote healthier dynamics and a forward-thinking approach to marital life.
[1]https://www.oxfordlearnersdictionaries.com/definition/english/prenuptial-agreement?q=prenuptial+agreements (last visited on January 28, 2025)
[2] Allison A. Marston, “Planning for Love: The Politics of Prenuptial Agreements” 49 Stanford Law Review 03 (1997).