Written by Dr. Hassan Elhais Muslim couples (Emirati and expatriate) enter into a marriage contract (Nikah') if they conduct an Islamic marriage in a Muslim jurisdiction or elsewhere.
To what extent are pre and post nups binding within the jurisdiction?
Within the marriage contract is a section which allows for a dowry ('Mahr') to be specified. Mahr is a sum of money or property, which the wife is entitled to receive from her husband in consideration of their marriage and is meant to offer financial security to the wife. There are two types of Mahr provided in the UAE Personal Status Law, namely: Prompt Dowry (Mokadam) and Deferred Dowry (Moajal). Whereas Prompt Dowry is payable immediately upon the marriage, Deferred Dowry is payable upon the dissolution of a marriage, either by divorce or death. The dowry must be present in the contract to ensure its legal validity. The marriage contract has been compared to a pre-nuptial agreement because of the dowry, but it is far from this. There are restrictions as to what can be included within the marriage contract, those that are contrary to public order or Islamic Shari'a will not be included.
Some wives may use the Dowry term to give them a bargaining position and agree to receive a lesser dowry on alternative terms to their benefit. The marriage contract is negotiated and agreed upon by the husband and the wife's father or another male guardian, often with the benefit of legal advice (although this is not required).
If a Muslim couple wishes to rely on a pre-nuptial agreement validly drafted in another jurisdiction, likely, the UAE courts would not choose to enforce the terms, especially about children. This is because under Sharia law a couple could not enter into an agreement concerning children that have not yet been born.
The contract will be void or voidable if any term in the agreement conflicts with Islamic Shari'a, public order or morals in the UAE (Article 27 Civil Transactions Law). Public order is defined in Article 3 of Civil Transactions Law as 'matters relating to personal status'. This means that any terms in the contract that are against or conflicting with UAE morals would be void.
Notwithstanding, if you would like to be sure that the terms of the pre-nuptial agreement are contracted between the parties in such a way that its enforcement is assured, then you may reproduce the terms of the prenuptial agreement in the post-nuptial agreement. A postnuptial agreement can be signed even one day after the marriage.
Update:
The above information might not apply if both parties are non-muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-muslim expatriate residents in case none of them wanted to apply his/her home country's law in the UAE. Prenuptial agreements may be taken into consideration, according to Federal Law 41 of 2022 on Civil Personal Status. 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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