Indian marriages have changed dramatically over the past two decades. People are marrying later, building careers before marriage, buying homes in their own names, investing independently and, increasingly, entering marriage with active financial lives. Yet the law governing marriage has largely remained unchanged, offering detailed legal remedies when a marriage breaks down. However, there is almost no room for couples to decide in advance how their financial affairs should be managed if that happens.
That gap has brought prenuptial agreements into public discussion. While common across many jurisdictions, prenups continue to occupy uncertain legal ground in India. Under the Indian Contract Act, 1872, agreements made in anticipation of divorce are generally regarded as being opposed to public policy and are therefore unenforceable. For Hindus, the position is reinforced by the legal understanding of marriage as a sacrament rather than a purely contractual relationship. As a result, an agreement seeking to predetermine maintenance, alimony or other financial consequences of divorce is unlikely to be upheld by Indian courts.
Even so, the conversation is beginning to shift. In 2023, while deciding on a long-pending matrimonial dispute, a judge of the Delhi Family Court at Patiala House observed that the time had come to consider compulsory prenuptial agreements, signed only after both parties had undergone counselling. The recommendation was not aimed at making divorce easier or enabling one spouse to protect wealth from the other. It reflected a practical reality that family lawyers encounter every day.
By the time disputes over maintenance, custody, ownership of assets and financial disclosures reach court, the marriage has usually broken down beyond repair. What begins as one matrimonial dispute often expands into multiple proceedings involving maintenance, domestic violence, custody, property and criminal complaints. Years are spent in litigation, legal costs continue to mount, businesses and careers are disrupted, and assets remain tied up while the parties wait for final resolution. The court's observations recognised that greater financial transparency before marriage could narrow the issues that eventually reach litigation and reduce the burden not only on families but also on an already overburdened judicial system.
Other jurisdictions have attempted to strike this balance differently. The US largely treats prenups as contracts, provided there has been full financial disclosure and independent legal advice. The UK has adopted a more nuanced approach. Since Radmacher v. Granatino (2010), courts generally give considerable weight to prenuptial agreements entered into voluntarily and with informed consent, unless enforcing them would leave one spouse in serious financial hardship. Rather than making the agreement absolute, the courts retain the power to intervene where fairness demands it. That model sits more comfortably alongside India's family law framework than a system of strict contractual enforcement.
In the absence of a statutory framework, Indian families have increasingly resorted to alternative planning tools. Wealthy families often settle inherited assets or family businesses into private trusts before marriage. Muslim couples may incorporate financial terms within a Nikahnama, reflecting the contractual nature of marriage under Muslim personal law. Lawyers also use family settlements, gift deeds, postnuptial agreements and detailed financial disclosures to record the parties' intentions. Each serves a legitimate purpose, but none functions as a true substitute for a prenup. A trust protects only those assets transferred into it and cannot determine maintenance or regulate jointly acquired property. Likewise, any arrangement designed to defeat a spouse's statutory rights may still be questioned by the courts.
If India were to recognise prenups, it should do so through a framework suited to its own legal system rather than by importing foreign models. Any legislation would need to mandate complete financial disclosure, independent legal advice, adequate time for consideration and pre-marital counselling. Equally important, it must preserve non-negotiable statutory protections. A spouse's legal entitlement to maintenance, where applicable, and a child's right to financial support should never be capable of being waived by contract. Instead, a prenup should serve as persuasive evidence of the parties' financial intentions, while leaving courts free to disregard terms that are unfair, unconscionable or contrary to public policy.
Marriage will always be built on trust, but trust and transparency are not competing ideas. The law already expects couples to make informed decisions about succession, taxation and financial planning; there is little reason why marriage should remain an exception. But there is certainly room for a framework that recognises financial clarity without compromising fairness. The debate, therefore, is no longer about whether prenups belong in India. It is about whether Indian law is prepared to acknowledge that modern marriages are not only emotional partnerships, but financial ones too.
Shraddha Nileshwar is head of will & estate planning at 1 Finance.