Prenuptial Agreements In India: A Comprehensive Guide

Understanding Prenuptial Agreements In India

At Prenup India, we recognize that modern relationships require modern solutions. That is why we help couples approach marriage with clarity and confidence through structured, sound Prenuptial Agreements (Prenups). To help you get started with your prenup, this guide addresses key questions about prenups so you can make informed decisions about protecting your financial future and securing your marriage.

What Is A Prenuptial Agreement (Prenup)?

A prenuptial agreement, commonly called a prenup, is an agreement entered into by couples before marriage. Among other provisions, it can address and/or determine terms for:

• Division of assets and properties.
• Financial responsibilities during marriage.
• Alimony & spousal support arrangements.
• Debt allocation.
• Family inheritances.

Is A Prenup Legal & Valid In India?

While not explicitly codified or recognized under Indian law, and not strictly enforceable like other agreements and contracts, properly drafted prenups are increasingly being considered by Indian courts as evidence in marital disputes, provided they meet certain legal standards.

In 2023, a Family Court in Mumbai held that while a prenup is not a binding contract in India, it can be considered to gain insight into the intentions of the parties involved. In 2023, another Family Court in Delhi said “Make prenuptial agreement compulsory.” Courts use prenups to understand what the couple intended to do in case their marriage did not work out. They can act as a deterrent for false claims and provide evidence of financial discussions. This evidentiary value is especially useful when filing Assets and Liabilities Affidavit, which is now compulsory in divorce cases.

This is an evolving area of the law, though written and signed prenuptial agreements have existed in India for at least several decades. They have been held to be valid and enforceable in certain cases. Check out our Resources Page to learn more about their validity, and the recent views of Family Courts and the judiciary on the matter of prenups.

There are 3 primary elements to consider when it comes to any agreement or contract:

• Legality
• Validity
• Enforceability

Let’s understand the possible scenarios here:

If a contract is illegal, it is always unenforceable regardless of whether it is valid or invalid.

If a contract is legal and invalid, it is not enforceable.

If a contract is legal and valid, it is generally enforceable.

In rare cases, a contract may be legal and valid, but still unenforceable (for e.g. a verbal bet between two people).

Now, for clarity, let’s answer some common and frequently asked questions (FAQs) on prenups as briefly as possible:

Is a prenuptial agreement illegal in India? No, prenups are not illegal in India.

Is a prenuptial agreement legal in India? Yes, prenups are legal, valid, and enforceable for certain communities and territories in India.

Is a prenuptial agreement valid in India? Yes, prenups are valid in some communities and territories of India, while in other cases the court has held that a prenup between parties is invalid.

Is a prenuptial agreement invalid in India? In certain cases, prenups have been held by courts to be invalid.

Is a prenup enforceable in India? Where prenups are valid, they are generally enforceable. In cases where prenups are invalid, they are not enforceable.

What is the difference between “illegal” and “invalid”? In this context, “Illegal” means against the law, while “invalid” means not legally binding or enforceable. Invalidity can stem from other flaws like lack of consent or proper agreement formation (e.g., unsigned contract, missing essential terms, absent consideration). In short, all illegal agreements are invalid, but not all invalid agreements are illegal.

Simple example: A contract that was never signed may be invalid. It is not, however, illegal.

What Can Be Included In A Prenup In India?

Indian prenuptial agreements can address several important financial matters and aspects of married life:

Asset Protection

• Separate property clauses for assets owned before marriage.
• Business ownership and profit-sharing terms.
• Inheritance rights and family heirlooms.
• Future asset acquisition guidelines.

Financial Responsibilities

• Division of household expenses.
• Management of joint accounts.
• Investment and savings strategies.

Post-Marriage Considerations

• Alimony and spousal maintenance terms.
• Property division guidelines.
• Debt responsibility allocation.
• Dispute resolution mechanisms.

What Cannot Be Included In A Prenup In India?

There are important limitations to what terms and provisions can be included in a prenuptial agreement in India. Some of these are listed below:

Matters Related to Children

• Child Custody: Prenuptial agreements cannot determine child custody arrangements, visitation rights, or the child’s religious upbringing or schooling.
• Child Support: The agreement cannot predetermine child support obligations. Child custody & support are determined by the courts.

Personal Matters

• Day-to-Day Household Matters: A prenup cannot dictate household chores, who is responsible for certain tasks, or other personal preferences.
• Personal Behaviours: Clauses related to personal behaviours, such as infidelity or where to spend holidays, cannot be included.
• Spousal Responsibilities: A prenup cannot force one spouse to be a stay-at-home parent or hold down a specific job.

Illegal or Unfair Provisions

• Illegal Or Unethical Provisions: Anything that violates the law cannot be included in a prenuptial agreement.
• Unconscionable Terms: Agreements with terms that are grossly unfair or one-sided, create extreme hardship, or violate fundamental rights or marital rights cannot be included in a prenup.
• Provisions Against Public Policy: A prenup cannot include provisions that go against public policy, such as waiving a parent’s obligation to provide child support.

Legal Framework For Indian Prenups

As a matter of best practice, prenups in India should:

1. Be executed well before the wedding date.
2. Include full financial disclosure from both parties.
3. Be reviewed by independent legal counsel for each partner.
4. Contain fair and reasonable terms.
5. Be properly witnessed and notarized.

For more information and answers to frequently asked questions about prenups in India, visit our FAQ Page.

Why Choose Prenup India?

Prenup India simplifies the sensitive process of drafting a sound prenuptial agreement tailored to Indians. Our platform offers fully customizable agreements to address asset division, financial responsibilities, and business protection, among other aspects of married life, ensuring your unique needs are met.

Our expert services include:

• Customized prenuptial agreement drafting for your specific needs.
• Comprehensive guidance and advice from legal experts and Registered Advocates.
• Balanced terms that protect both parties and ensure fairness.
• 100% Privacy and discreet professional handling of sensitive matters.

With expert legal reviews, affordable pricing, and a user-friendly online experience, we prioritize convenience, confidentiality, and transparency. By fostering open communication and setting clear financial expectations, we aim to strengthen relationships while safeguarding your individual interests.

Choose Prenup India for a seamless and professional way to secure your future together.

Next Steps: Create Your Prenup

Understanding prenuptial agreements is the first step toward securing your marriage and financial future together. At Prenup India, we combine legal expertise with personalized service to create agreements that stand the test of time.

To see how to create your prenup, take a look at our easy 3-step process: How To Create A Prenup Online In India.

Or contact our team today to discuss how we can help protect your future.