Written by Dr. Hassan Elhais Marriage is considered a sacred event precluded with love, bliss and joy until it comes to an end abruptly through a divorce, leaving behind bitterness over financial and custody matters. It all may end a lot worse if emotions lead to financial insecurities leaving you bankrupt all your life. Having said that, most couples enter into a fair deal before the marriage to ease the procedure of divorce referred to as a Prenuptial Agreement.
To elucidate briefly, a prenuptial agreement is an agreement entered into by any couple, yet to get married. The said agreement highlights the procedure for the distribution of assets and other financial obligations, in the event spouses part ways. On the other hand, any agreement signed post the conclusion of marriage is referred to as Postnuptial Agreement.
Family Lawyers of Dubai receive numerous inquiries concerning the validity of any nuptial agreement signed by spouses under the Personal Status Law (Federal Law 28 of 2005). Consequently, this article will annotate various aspects of pre/postnuptial agreement.
Under Personal Status Law
The marriage contract is a legal document that can specify dowry or Meher. The dowry (known in Arabic as "Mahr") can be outlined in the marriage contract. Mahr is a monetary or material gift given to the wife by the husband as part of the marriage contract; it is intended to provide the wife with a measure of financial stability. In the United Arab Emirates, the Personal Status Law provides for both immediate dowry (Mokadam) and delayed dowry (Moajal). Deferred Dowry, in contrast to Prompt Dowry, is not paid until the marriage ends (through death or divorce). The dowry provision is necessary for the contract to be binding under law. The dowry has led some to incorrectly label the marriage contract as a prenuptial agreement. Whatever is not following public order or Islamic Sharia law will not be included in the marriage contract.
Some wives may use the Dowry term as leverage to negotiate for a smaller dowry in exchange for other benefits. The marriage contract is typically negotiated and agreed upon by the groom and the bride's father or another male guardian, with or without the aid of legal counsel.
The UAE courts are not likely to follow a prenuptial agreement written in another country by a Muslim couple, especially if it has to do with their children. This is because a couple cannot agree with their unborn children under Sharia law.
Article 27 of the UAE Civil Transactions Law states that if any provision of the contract is contrary to Islamic Shari'a, public order, or morals, the contract is null and void. Public order is defined as "matters relating to personal status" in Article 3 of the Civil Transactions Law. This would render null and void any provisions of the contract that go against or are in conflict with the morals of the United Arab Emirates.
However, if the parties want to be extra confident that the prenup's terms are contractually agreed upon in a way that ensures the prenup's enforcement, they can do so by including the prenup's terms in the postnuptial agreement. A postnuptial agreement can be signed at any time after the wedding, even the day after.
Update:
If neither of the parties involved is a Muslim, the foregoing might not be relevant. The United Arab Emirates (UAE) has issued a family law that will take effect between non-Muslim expatriate residents as of February 1, 2023, if no one chooses to apply the law of his or her home country. Following Federal Law 41 of 2022 on Civil Personal Status, prenuptial agreements may be considered. Article 9 of this law reads, "in the absence of an agreement on the conditions or controls of such alimony or other financial claims in the marriage contract." Although, due to the laws' recentness, there haven't been any test cases on this topic. Prenuptial agreements should theoretically be enforceable under Abu Dhabi Law No. 14/2021 on Civil Marriage and its Effects in the Emirate of Abu Dhabi by the Abu Dhabi civil family courts, albeit we have yet to see how. To know more information about this law, please feel free to click this link.
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