A marriage contract is a legal agreement that is made between two parties who wish to get married. The concept of a marriage agreement is basically followed in western countries. If we talk about that concept in India, marriage is treated as a holy concept and a part of the culture. That’s why this concept of contract marriage is not valid in India as per the provisions of the Hindu Marriage Act 1872. In India, lives many different religions, and they follow their culture and customs, which govern by their personal laws. And that’s why marriage is also a part of the personal law of different religions. In India, Muslim and Christian laws have covered marriage as a contract between spouses. But that concept is not followed in Hindu law as contract marriage does not accept in Hind law. In this article, we discuss the concept of the marriage agreement and try to understand the whole aspect of this concept in detail.
What is a marriage Contract?
A marriage agreement is a contract that is made and signed by the spouse who wants to plan to get a marriage or afterward. Most of cases, such a marriage agreement is prepared and signed before the date of marriage. The aim of preparing the marriage agreement is to sort out legal issues if any come out in the case the marriage ends. It will also help the spouse how deal with their marriage life and handle all things as a husband and wife.
In a marriage contract, an agreement is prepared between two people who want to live together as a husband and wife. The mainly used of the contract marriage is to determine by the spouse retains their property and assets if an event comes in their life that causes the end of the marriage. In some cases, it happens that the spouse also includes some terms and conditions on which they agreed while entering the marriage agreement. And they try to cover all aspects. For example, if the child is born before the marriage, who will take care of him if the marriage ends?
There is no hard and fast rule to compulsory making a marriage agreement. No law says the party must sign a marriage agreement after or before marriage. Even your marriage partner can’t force you to for doing that. However, as per this concept, in most cases, a couple who wants to marry doesn’t enter into a marriage agreement in common.
When does the marriage Contract become a good idea for a spouse?
Generally, the following things are determined, making the marriage agreement a good thing for the party.
- When the marriage party has owned enough properties.
- If there is a probability of the marriage party acquiring any property in the future, for example, acquiring a business, a gift, acquiring assets via settlement, etc.
- When marriage parties have childer from their previous relationship and decide to bring them into the marriage.
- Suppose marriage parties want to release the stress and difficulties which may be coming out after the separation of their marriage. – Suppose they decide to avoid legal problems in the future, such as dealing with the partition of properties, debt, and their legal rights and responsibilities, etc. In that case, they can enter into a marriage agreement.
- If marriage parties have felt a bad experience of a court battle during the previous relationship and want to avoid that mistake in the future.
- If anyone of the marriage parties entered with some debts or liabilities.
When does the marriage agreement not to be considered a good idea?
A marriage agreement does not become a good idea in the following cases;
- If the marriage party does not have much property or significant debts.
- When a party of marriage matures and has a good understanding between them, as well wish for permanent marriage life.
- If the marriage party has no children from a previous relationship.
There are no requirements for a marriage agreement that starts their life as a spouse with mature understanding.
What are the legal essentials of a marriage agreement?
To make a legal effect; there are some essentials requirement that must be followed by the marriage parties, which are given below;
(1) The marriage agreement must be in writing form.
The marriage agreement is a crucial part that defines and protects a spouse’s legal rights and obligations. That’s why that must be prepared in writing form. A marriage agreement is a contract, and there is legal validity in the eyes of the law. Suppose marriage parties lapse their rights, duties, or obligations mentioned in the agreement. That can be enforceable in a court of law.
(2) Name of the parties
Both parties must mention their full name and address in the agreement. The details of the marriage must be narrated in the agreement in that clause. It is also important to mention the date when the contract parties entered the agreement and signed it.
(3) Capacity of party
The marriage party who entered into the agreement must have a legal capacity. For example, the party must have a legal age and not be an unsound mind while entering into a marriage contract and signing it.
(4) Specify their rights and obligation over the contract
The contract parties must be specified their rights and obligation to each other. Both parties must be able to understand the terms and conditions of the contract and will be ready to agree.
(5) Specify the property detail that the contracting party owns
In this clause, the contract parties must be specified their individual property, which they owned before the marriage, so that the party can specify their rights and obligation regarding that property. And such property can be divided between them according to the property law of their country. That property can exist at the time of signing of an agreement or be owned in the future.
(6) Nature of the agreement is contingent
The marriage agreement which is made between the spouse depends upon the marriage. That’s why the agreement is contingent because if any marriage party doesn’t want to marry in that case, there is no need to enter into such a contract.
(7) Mention the marital property detail
It is an essential clause of the marriage agreement. That’s why the marriage party must carefully mention all details of the marital property. Here in this clause, all properties must be included, which are obtained in marriage life and before the date of separation. Here is one thing to note the marriage party can mention their separate property in the agreement if they want to voluntarily contribute.
(8) The party can consult a legal adviser Independently
The marriage party has the legal right to consult a legal adviser as they choose. There is no restriction for selecting a legal expert or attorney to consult any technical issue regarding the content of the marriage agreement. This clause ensures that non of them are required to enter the marriage contract forcefully.
(9) Verify the assets
In this clause, the marriage party should specify their assets which are mentioned in the agreement. Through this clause, they can disclose their complete actual financial position. Without that, the marriage contract might fail to force and may become an invalid agreement by the eye of the law.
(10) Legal clause
This clause plays an essential role in the marriage agreement. Here, the spouse mentions the place where the marriage party lives and what state law will be enforceable.
(11) Specify the termination event clause
This clause also is essential as the content of the marriage agreement. When a spouse disagrees with their marriage life, it will end. At that time, some technical questions arise about how to divide the property a spouse obtains at the date of separation. The marriage agreement must include that termination clause to avoid that technical legal problem.
(12)To prepare for necessary documents clause
This clause specifies that the marriage party is willing and agrees to sign a necessary document, which is required to fulfill all the terms and conditions of the marriage agreement.
(13) Amendment clause
Sometimes, when the party agrees, that needs to modify in the future. That clause helps the party amend or revoke some clauses from the agreement if required in the future—that clause describes the amendment procedure of the contract.
(14) Partial Invalidity clause
The marriage party should include this clause in the agreement. This clause helps the party when any part of the agreement becomes unenforceable, then the other part of such contract will be in effect.
(15) Binding effect of a marriage contract
This clause is a crucial part of a marriage agreement. In other words, we can say without that such contract has the probability of failure. In this clause, the marriage party declares how they decided to manage and govern their rights to the property. And what is the effect after the spouse’s death, as well as what types of property rights are available for the legal heirs in the event of the spouse’s death?
(16) Voluntary the contract clause
In this clause, the marriage party specifies that they enter the contract with understanding and reasonably agree to all those clauses. They are not entered by force or any kind of pressure.
(17) Attorney fees and registration charges
In this clause, the marriage party specifies that the spouse should be liable to pay agreement charges individually. And if any one of the spouses wants to divorce, they will be responsible for attorney fees.
(18) Signature clause
This clause is an integral part of the marriage agreement. The marriage party must put their signature in an agreement with the presence of their attorney and notary.
Both the marriage parties must put their signature in the presence of a witness. Here one thing we should note is that a marriage agreement that is made without a witness is also valid in the law, but it is advisable to complete and sign it with the presents of a witness for confirmation purposes.
Types of marriage agreement
The marriage contract is the main contract. But marriage related different types of agreement can be used that are given below;
The marriage party can use this type of contract before entering into the marriage. In that contract, the spouse describes their financial assets and property. Like, bonds and stocks. When all these assets are brought into the marriage, it’s known as pre-marital assets. Here in this contract, the marriage party specifies how these assets operate and manage during the marriage as well at the event of their marriage or divorce.
It is a contract that the marriage party makes after the legal marriage, which is enforceable by the law. In that Postnuptial agreement, the spouse describes the division of properties and assets. They also mention how that will be divided at the time of divorce or the death of any spouse. That agreement gets useful while marriage is legal and enforceable by law. The marriage party can establish his property rights through this contract, even during divorce.
The separation agreement is one type of contract in that based the marriage party decides and agrees to live separately apart of that agreement. The spouse can live separately without getting a divorce. The marriage party address all conditions on that based they decide to live separate from each other. For example, they specify who takes child custody, child welfare, maintenance of child and spouse, and how to handle their property, assets, liabilities, etc.
Stipulation/ Marital settlement agreement
When the marriage party wants to end off marriage with mutual understanding they can prepare this agreement. This agreement also known by another name which is marital settlement. One of the crucial parts of this agreement is the marriage party can agree for the separation without involvement of the court.
This agreement can be enforceable for any spouse, as well it can be challenged by them in a court of law, and they are entitled to decide the matter of dispute by the court. These types of agreements also confer legal validity. If the court finds unfairness, that agreement might be declared invalid.
Generally, this agreement includes all types of property details, assets, liabilities, details of the maintenance of spouse and children, details narration of child custody, etc. The main aim of this agreement is to make all these arrangements without the court’s involvement.