A prenuptial agreement, antenuptial agreement, or premarital agreement (commonly referred to as a prenup) is a written contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony (spousal support) with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.
In some countries, including the United States, Belgium, and the Netherlands, the prenuptial agreement not only provides for what happens in the event of a divorce but also protects some property during the marriage, for instance in case of bankruptcy. Many countries, including Canada, France, Italy, and Germany, have matrimonial regimes, in addition to, or in some cases, instead of prenuptial agreements.
Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married. When divorce is imminent, postnuptial agreements are referred to as separation agreements.
Legal recognition
Laws vary between states and countries in what content they may contain and under what conditions and circumstances a prenuptial agreement may be declared unenforceable, such as an agreement signed under fraud, duress, or without adequate disclosure of assets.
Africa
South Africa
In South Africa, a civil marriage or civil union is, by default, a marriage in a community of property. To marry out of the community of property, the parties must sign an antenuptial contract in the presence of a notary public before their marriage and the contract must be registered in the Deeds Office within three months from the date of signature of the contract.
When marrying out of the community, the parties have a choice to marry with application of the accrual system or without application of the accrual system.
If the parties marry without accrual, the spouses' respective estates would always remain separate and neither party will have any proprietary claim against the other by the marriage.
If the parties marry with application of the accrual, their respective estates would remain separate during the subsistence of the marriage. Upon dissolution of the marriage, whether by death or divorce, the spouse with the lesser accrual would have a claim against the spouse with the larger accrual for half the difference between their accrual values.
Asia
India
In India, prenuptial agreements are very rare and do not have any governing laws. However, with rising divorce rates, people are showing increasing interest in them. Some lawyers think that prenups don't have legal sanctity in India. However, some form of contract is signed in some cases, usually among affluent citizens. But, the agreements need to be reasonable and not violate pre-existing laws like the Hindu Marriage Act. Indian courts allow a memorandum of settlement to be signed during divorces. But, no court has yet been asked to enforce a prenup.
These agreements may come under the Indian Contract Act of 1872. Section 10 of the Indian Contract Act states that agreements are to be considered contracts if they are made with the free consent of the parties. However, Section 23 of the same act states that a contract may be void if they are immoral or against public policy.
Goa is the only Indian state where a prenuptial is legally enforceable, as it follows the Portuguese Civil Code, of 1867. A prenuptial agreement may be signed between the two parties at the time of marriage, stating the regime of ownership. If a prenuptial has not been signed, then the marital property is simply divided equally between the husband and wife.
Hong Kong
Pre- and Post-Nuptial Agreements in Hong Kong can be of “magnetic importance” in deciding the parties’ claims for ancillary relief. The leading case of SPH v SA in Hong Kong’s highest court, the Court of Final Appeal followed the earlier English Supreme Court decision of Radmacher v Granatino. That was perhaps unsurprising as one of the Judges in Radmacher (Lord Collins) also sat in Hong Kong as an NPJ. (Similarly, the successful leading counsel for Frau Radmacher, Richard Todd QC was also leading counsel for Madame S. in SPH v SA).