Hardik Pandya-Natasa Stankovic divorce rumours: Is pre-nuptial agreement legally enforceable in India?

Recent speculations surrounding the divorce of Indian cricketer Hardik Pandya and the Serbian model Natasa Stankovic have not only stirred public curiosity but have also brought the spotlight on the status of pre-nuptial agreements in India. 

Allegedly, Natasa may seek a substantial 70% of Pandya's assets as part of the settlement. However, neither party has made any official statements confirming the divorce or the purported settlement terms.

This high-profile case has prompted a closer look at the legal standing of pre-nuptial agreements in India. Unlike in many Western nations where pre-nups are common and legally enforced, India presents a different legal landscape.

Experts reveal that pre-nuptial agreements do not have legal backing in India due to the predominance of personal laws over civil contracts in marriage-related issues. For instance, Hindu, Muslim, and Christian personal laws, which govern most of the population, do not formally recognize pre-nuptial agreements. Therefore, these contracts rarely hold up in court if challenged.

Here is what experts say about the status of prenuptial agreement in India

Ankur Mahindro, Managing Partner, Kred Jure

While executing a prenuptial agreement would have been the most effective way of protecting asset base of the respective parties, however, such an agreement is not legally enforceable in India for being considered immoral and against the public policy, thus, considered void under Section 23 and other provisions of the India Contract Act, 1872 and other applicable laws.

Unlike many countries, there is no concept of distribution of estate in India (except in Goa), especially self-acquired properties of one spouse to another, however, both parties to a divorce proceeding have the right under law to seek monetary assistance, be it in form of maintenance pendente lite, permanent alimony, final maintenance or any other relief available under law. 

Wife can also seek compensation for domestic violence subjected upon her, right to residence and a lifestyle commensurate to the one enjoyed prior to the matrimonial discord. The custodian parent can also seek maintenance for the children from the non-custodian parent.

In a contested divorce, usually a spouse is granted interim maintenance till the adjudication of the proceedings is ongoing, and thereafter, the court may or may not grant alimony at the time of passing decree of divorce, depending upon the facts of such case, on the other hand, in a mutual consent divorce, the parties are fit to come to consensus about the terms of separation and all claims culminating therefrom, such as, alimony, maintenance, accommodation, guardianship, custody and all other similar claims.

To conclude, one spouse does not ipso facto become entitled to seeking share in the self-acquired property of the other spouse, however, depending upon the facts of the case, the court may direct one spouse to provide accommodation to the other spouse or pay maintenance in lieu of such accommodation. The Court may also grant a monthly maintenance payable by one spouse to the other or a lump sum alimony amount payable to the spouse at the time of separation. The children are also entitled to seeking a share in the ancestral property wherein they acquire right by birth.

If one spouse passes away during the pendency of the divorce proceedings, even then the other spouse would be entitled to claiming a share in his immovable properties, if such person has died intestate, i.e., without executing a will or any testamentary document of such nature. Thus, while the property is protected during the lifetime of such spouse, it is advisable to execute a Will barring bequeathal of any share in such immovable property upon the other spouse, to protect the property after his/her demise.

 Sneha Bhogle Kale, Partner, Accord Juris LLP

Although prenuptial agreements aren't traditionally recognized in India, courts have increasingly begun to acknowledge them, given the rising complexities in marriages and divorces. It's advisable for prospective spouses to execute a prenuptial agreement to safeguard their assets in case of separation or divorce. These agreements function as regular contracts under the Indian Contract Act, 1872, carrying the same legal weight. However, they are not recognised by personal laws since marriage is considered sacramental. 

Such agreements protect individuals with inherited businesses and wealth, who might otherwise face significant asset loss during a divorce. Recent court decisions emphasize the importance of prenuptial agreements for young couples. For instance, a judgment from the Patiala District Court highlighted the necessity of making prenuptial agreements compulsory and registered before marriage. This can help define terms of alimony, maintenance, and child protection, thus avoiding prolonged divorce litigations.

In our evolving society, legalizing and enforcing prenuptial agreements is crucial for saving time and ensuring fair asset distribution.