Premarital Agreement

Premarital Agreement: what it is

A premarital agreement is a written record, signed by two people before they marry, of the assets each brings into the marriage and how they intend to handle money. Indian law does not have a specific statute for prenups, so the document works mainly as evidence of what both sides disclosed and agreed, rather than as a contract a court is bound to enforce.

When you need this document

• One partner owns a business, ancestral property or large savings and wants a clear record of what was owned before the wedding.
• Either partner is remarrying and wants to keep assets meant for children from an earlier marriage clearly identified.
• The couple wants to agree in advance how household expenses, joint purchases and loans will be shared.
• One partner is an NRI or plans to settle abroad, where such agreements may carry more weight, and wants a dated Indian record as well.

What it covers

• The names of both parties, the date of signing and the planned wedding date.
• A disclosure of the assets each party brings into the marriage.
• The financial arrangement the couple has agreed for the marriage.
• An express acknowledgement that premarital agreements are not fully codified in Indian personal law and that enforceability may vary.
• A confirmation by both parties that they signed freely and with full understanding of the contents.

How to fill, sign and use it

1. 1List each person's assets honestly and in detail, including property, deposits, investments, jewellery and debts, because hidden assets weaken the whole document.
2. 2Write the financial arrangement in plain terms, such as who pays which expenses and how jointly bought assets will be held.
3. 3Have the draft reviewed by an advocate before signing, since there is no single law on prenups in India and terms that touch maintenance, custody or divorce can be treated as against public policy.
4. 4Give each partner time to read the final draft well before the wedding, so neither can later claim pressure.
5. 5Print on stamp paper of the value your state requires for an agreement, sign in the presence of two witnesses and consider getting it notarised.
6. 6Keep an original each, along with the supporting asset documents, in a safe place.

Documents to attach or keep with it

• A schedule of assets with values and supporting papers such as title deeds, bank statements or share statements
• Identity proof of both parties
• A list of jewellery and gifts received from either family
• Any independent legal advice note, if each partner took separate advice

The law behind it

No Indian statute deals specifically with premarital agreements. They are tested as ordinary contracts under the Indian Contract Act, 1872, which requires free consent and a lawful object. Clauses that try to decide in advance whether a couple may divorce, or that waive a wife's or child's right to maintenance, are likely to be treated as against public policy. Marriage, maintenance and custody are governed by personal law, such as the Hindu Marriage Act or the Special Marriage Act, and courts decide those issues on their own merits. Goa, with its own civil code, treats property arrangements made before marriage differently.

Common mistakes to avoid

• Signing a few days before the wedding, which invites a later claim that consent was given under pressure.
• Leaving out assets or debts from the disclosure, which damages the credibility of the document.
• Including clauses that give up maintenance or fix child custody in advance, which a court is unlikely to uphold.
• Not keeping the agreement updated when major assets are bought or sold after marriage.

Premarital Agreement: frequently asked questions