24 Mar 2022
In the bitter event of dissolution of marriage or sudden death of either of the spouses, most couples encounter various kinds of intricate legal issues on the division of capital, ownership of assets, property inheritance, spousal maintenance, debts, to name a few. For this purpose, many couples prefer to enter into pre-nuptial agreements (also called premarital or prenup agreements) or postnuptial arrangements to determine their legal rights on such matters that may arise in the event of divorce. The pre-nuptial or postnuptial agreement limits court’s interference, especially concerning financial issues at the time of divorce proceedings. Such limitation on courts shall be applicable as long as the pre-nuptial or postnuptial agreements are valid by the provisions of law regulating such contracts.
Pre-nuptial agreements are those agreements that are entered by couples before their marriage to determine their legal rights and obligations on a wide range of financial matters like division of assets or debts, ownership of property and capital, the inheritance of property, spousal maintenance, in the event the marriage dissolves.
A postnuptial agreement is entered into by couples after the wedding is concluded for the same purpose for which a prenuptial agreement is signed.
It is essential for the couples who prefer to enter into pre-nuptial or postnuptial agreements to be aware of the validity and recognition of such arrangements within the jurisdiction applicable if they decide to file for divorce the fact of such contracts differs from country to country. For instance, pre-nuptial agreements were not enforceable in England and Wales until the year 2010, when the Supreme Court has authenticated such contracts in the famous case of Radmacher V Granatino, as long as such agreements are devoid of any unfair terms. On the contrary, countries like India and the United Arab Emirates (UAE) have no explicit laws governing pre-nuptial or postnuptial agreements, and the validity of such contracts shall be construed under the law of contracts. This article shall elucidate on the enforceability and recognition of the prenuptial and postnuptial agreements within the legal framework of the UAE.
UAE being a Muslim country has drafted its legislation in a manner embedding the principles and rules of Sharia Law, specifically when it comes to matters related to personal status. Federal Law Number of 28 of 2005 as amended by Federal Decree Number 29 of 2020 (the Personal Status Law), is the key legislation that governs all the matters about the family such as marriage, dissolution of marriage, child custody, wills, and inheritance, alimony, among other such relevant aspects of personal status. According to the provisions of Sharia Law, the notion of matrimonial assets or marital property is not recognized, but rather, it provides for sovereign rights over the properties acquired or owned by each of the spouses during the marriage. This means the right to raise a claim by either of the spouses on each other’s properties is not allowed in the event of a breakdown of the marriage. Thus, the provisions of the Personal Status Law have not entail any provisions recognizing the pre-nuptial or postnuptial agreements.
Article 19 of the Personal Status Law views marriage as a contract. Thus, article 20 of the Personal Status Law allows the couple to enter into mutual terms and agreements (conditions) pertaining the marital rights and duties, which can also include rights related to properties. However, the marital contract shall be valid as long as the conditions mentioned in the contract are not contradicting the principles of Sharia Law (like division of marital property is not recognized by the Sharia Law). Having said that, marriage being a contractual undertaking under Islam encompasses the essential elements like offer, acceptance, and dowry (Mahr). Although the principles of Sharia Law have not recognized the concept of marital property, it has provided for a provision whereby the husband is obligated to give to the wife an amount of money or any other valuable assets, either as a prompt mahr or deferred mahr. This provision acts as a means of ensuring that the wife is not devoid of financial security in case of divorce or sudden death of her husband. Thus, it is necessary for UAE nationals to ensure that the marriage certificate entails such relevant terms (inheritance, spousal maintenance, separation of properties, and gifts received) in the event of dissolution of marriage, and such provisions or terms specified in the marriage certificate shall be in harmony with the principles of Sharia Law.
The validity of the Pre-Nuptial Agreements Entered into by the Expats Residing in UAE:
As per article 1 of the Personal Status Law, the scope of the provisions of this law extends to all the non-nationals residing in UAE (Muslims & non-Muslims), along with the UAE nationals. However, it also provides that the non-Nationals can choose to be governed by the laws of their home country or the country where the marriage took place or their home country when it comes to family-related matters. Thus, as long as the jurisdiction under which the non-National couples seek to proceed with divorce in UAE has provisions upholding the nuptial agreements’ validity, the UAE courts can enforce such agreements. However, such agreements shall not be in contradiction to the UAE laws. The division of assets shall be regulated by the laws of the country where such properties are located. When it comes to Muslim ex-pats, if the divorce is filed within UAE, then Article 1 of the Personal Status Law will apply in the divorce proceedings. However, if the Muslim ex-pats seek divorce outside the jurisdiction of UAE, then pre-nuptial agreements shall be enforced under the provisions of Civil Law regulating the contracts.
The foreign nuptial agreements shall be enforceable by the UAE courts if the following necessary conditions have been met by the parties entering into such agreements:
- The terms mentioned in the agreement shall be fair at the time when such agreements are entered into;
- The agreement should not have been entered under coercion or duress;
- The parties to the contract shall disclose complete information of their financial status, acquired or owned assets, properties, before or during the time of marriage;
- The conditions applicable for a valid contract as per the provisions of Civil Law shall be present;
- Both the parties should have had an opportunity to seek legal advice on the pre-nuptial agreements;
- The pre-nuptial agreement should be entered into within a period of twenty-one (21) days before the marriage.
It is pertinent to note that the UAE courts enforce the pre-nuptial agreements only at the time of divorce proceedings. To conclude, when it comes to divorce proceedings for UAE nationals, the Personal Status Law provisions shall apply. Thus, pre-nuptial agreements shall fall under the radar of provisions of this law. Whereas the foreign nuptial agreements shall be regulated by the laws of the country under which divorce has been filed. However, the UAE courts shall enforce the pre-nuptial agreements as long as they are not in conflict with the UAE laws or public morals or Sharia Law and have met the necessary conditions required to uphold the pre-nuptial agreements as valid.