From Westminster to Worli - Why Prenups Matter in Modern Marriage

The law on marital agreements in England has received renewed attention following two significant 2025 decisions - PN v SA [2025] EWFC 141 and Helliwell v Entwistle [2025] EWCA Civ 1055 (the details of which have been explored in the article here). These cases together underline how central prenuptial and postnuptial agreements (PNAs) have become to modern family justice. They illuminate the consequences of pressure, and the absolute premium placed on honest financial disclosure. 

It is an apt moment, therefore, to examine how England’s jurisprudence contrasts with the still-developing Indian position, and to consider what each system reveals about the role of marital agreements in contemporary relationships.

PNAs in England – balancing autonomy and fairness

While Radmacher v Granatino remains the lodestar for English nuptial agreements, establishing that freely negotiated agreements, entered with full appreciation of their implications, should generally be upheld, the recent decisions add texture to this framework.

In PN v SA, the court upheld an earlier post-nuptial agreement but refused to enforce a later “settlement agreement” that had been shaped by emotional pressure, strategic isolation from legal advice, and intimidating financial narratives. 

Helliwell v Entwistle addresses the other structural safeguard: financial disclosure. A PNA executed on the wedding day was ultimately vitiated not because of timing but because one party had deliberately concealed the majority of her wealth. The Court of Appeal was unequivocal - deliberate non-disclosure is incompatible with the premise of a binding marital agreement. Autonomy cannot be exercised against an inaccurate financial backdrop.

Together, these decisions demonstrate why PNAs remain central in English family law: they provide structure and predictability while giving parties autonomy to manoeuvre the financial consequences of their legal union. 

PNAs in India

Marital agreements occupy a strangely polarising space in India’s legal imagination. By contrast to the English position, they continue to be viewed with mild suspicion, as though the mere act of discussing financial expectations before marriage is sacrilegious.

“Marriage is a sacrament” is an argument past its expiry date

Indian courts have historically dismissed marital agreements on the ground that marriage is a sacrament, not a contract, and therefore any agreement anticipating separation undermines its sanctity. This position is traced through early decisions such as Tekait Mon Mohini Jemadai v Basanta Kumar Singh 1901 SCC OnLine Cal 60 and Krishna Aiyar v Balammal ILR (1911) 34 Mad 398, where courts held that agreements touching the marital bond offend public policy. 

But this reasoning is increasingly difficult to defend.

Modern marriage, especially in cosmopolitan cities such as Mumbai, Delhi and Bangalore often involve property, dual earning capacities, cross-border mobility, inter-generational wealth, and economic interdependence. If one can plan a wedding with spreadsheets, floor plans, and multi-page menus, one can certainly map out the financial architecture of the life one intends to build.

In fact, far from undermining the sanctity of marriage, a well-structured PNA reinforces it: it forces transparency, encourages honest conversations, and ensures that both parties begin married life with clarity rather than assumptions.

“PNAs may result in exploitation of the financially weaker party”

Ironically, the argument that PNAs harm vulnerable spouses ignores a far more uncomfortable truth: the absence of PNAs enables financial inequality to flourish unchecked.

In India, wealthier families routinely use family settlements, trusts, and corporate structuring to ring-fence assets before marriage, leaving the financially weaker spouse (often the wife) without meaningful protection. A PNA, properly drafted, gives her an opportunity to negotiate safeguards - maintenance terms, compensation for non-financial contributions (such as raising children and sacrificing an earning capacity), or protection against being left destitute after years of unpaid domestic labour.

English law recognises this dynamic. In PN v SA, the judge found that the wife had been subjected to undue pressure and intimidated by scare tactics - including being told she would end up “working the tills at Tesco” if she did not agree to the husband’s terms. This is precisely why English courts scrutinise PNAs carefully: autonomy is respected, but exploitation is not tolerated.

India: Slowly, Cautiously, Moving Forward

Although Indian courts have been slow to accept marital agreements, the landscape is not entirely barren. Societal dynamics are changing, and courts are increasingly willing to consider such agreements where fairness is maintained, and public policy is not “breached”.

• The Family Court in Mumbai recently upheld a prenuptial agreement executed by well-informed adults anticipating future separation, noting the value of such documents in reducing litigation.
• A Delhi Court judge in HMA 181/2023 went so far as to declare that “time has come to make compulsory prenuptial agreements” .

Given the lack of legislative appetite, jurisprudence is more likely to shape the future. Indian courts, much like their English counterparts, may proceed incrementally, recognising PNAs first as “relevant facts”, then “persuasive factors”, and eventually, as agreements that carry substantial weight when freely and fairly executed.

Crucially, PNAs could also temper anxieties on both ends of the financial spectrum. As debates in India increasingly feature concerns - sometimes voiced by those who fear disproportionate alimony claims when marriages break down - marital agreements offer a structured, mutually negotiated framework that could envisage a financial ‘floor’ and ‘ceiling’ on relationship breakdown. They help ensure that neither spouse is left vulnerable nor blindsided, and that outcomes reflect reasoned expectations rather than post-factum acrimony.

Several family courts have noted that such agreements can reduce litigation and promote settlement. This is especially pertinent in the current climate in which justices of the Supreme Court of India have commented that “As it is, we are more of a matrimonial and bail court now. Soon, it will become totally matrimonial.”

A Convergence in Principle, If Not Yet in Form

Viewed comparatively, the perceived tension between marital sanctity and financial clarity is largely illusory. England’s model demonstrates that respect for autonomy can coexist with safeguards designed to prevent exploitation. India’s evolving jurisprudence suggests a growing awareness that modern marriages involve cultural, emotional, and financial considerations that cannot be meaningfully disentangled.

Both jurisdictions are grappling with how best to support couples navigating the intersection of partnership and financial reality. In both systems, a similar insight is emerging - clarity is not the enemy of commitment, and transparency is often a better guardian of fairness than silence.