Mar 21, 2022

Prenuptial Agreements: Enforceable or Not

What are prenuptial agreements?

Prenuptial agreements or marriage contracts are domestic agreements between spouses, prospective spouses or live-in partners. They set out the terms of how the parties want to deal with the issues that would arise during and possibly, at the end of the marriage/relationship. Usually, such agreements deal with issues like the division of property acquired during the marriage/relationship and payment of maintenance/alimony.

Are prenuptial agreements valid in India?

No. Section 23 of the Indian Contract Act, 1872 specifically states that an agreement is considered to not have a lawful object if it is opposed to public policy. An agreement without a lawful object cannot be a legal contract .

Contracts governing marriages between persons residing in India are considered to be against public policy and so, not valid.

Why is a prenuptial agreement considered ‘contrary to public policy’?

A prenuptial agreement, as understood in other countries, is an agreement that allows parties to decide on issues such as maintenance and division of assets. The Indian scenario is different. The Indian Contract Act prohibits contracts that allow parties to agree to sign away rights ensured to them through personal laws. Also, agreements that contemplate separation such as prenuptial agreements are also considered opposed to public policy.

Are prenuptial agreements or marriage contracts not enforceable in India? If so, why do people enter them?

Prenuptial agreements or marriage contracts  are not enforceable in any court in India. Such agreements have persuasive value only, that is, they show the intention of the parties entering into marriage  regarding maintenance/alimony or division of assets at the time of entering a marriage. The court, while granting divorce and/or deciding maintenance or division of properties, may consider such a contract to guide its decision, but it is not bound by the terms of the contract.

How do Indian courts decide on issues of maintenance/alimony and division of assets then?

In India, marriage and divorce is governed by personal laws except when the marriage was solemnized under the Special Marriage Act. The personal laws of each religion have their own statutes that the Courts rely on to grant divorce, award maintenance, allow custody of children, etc. Apart from personal laws, maintenance can also be sought by a wife under the Criminal Procedure Code (Section 125) and by a wife/domestic partner under the Protection of Women from Domestic Violence Act, 2005 (Section 20). For more info, do look into our explainers on divorce for marriages solemnized under Hindu, Muslim and Christian personal laws and the Special Marriage Act 1954.

What about those personal laws which allow a marriage contract?

The Muslim personal law allows for the fixing of a Mahr at the time of the marriage, which has to be paid to the wife in case of termination of the marriage. Mahr is a form of marriage contract which is valid. However, the right to Mahr does not prevent any woman from going to court about issues of maintenance, custody, division of assets, etc. in terms of the general laws that apply to all persons residing in India.

(For more information about Muslim marriage laws, click here. You can find more details about Muslim divorce here.)

Under the Special Marriage Act of 1954, if a marriage is solemnized along with the proper registration of all the documents of declaration at the Registrar Office, then prenuptial agreements are considered as legally binding.

Click here to know more about inter-religious marriage under the Special Marriage Act of 1954.