Prenuptial or prenuptial agreements are frequently used as a legal tool to specify how assets should be distributed between future spouses in the event of divorce. Such agreements may include a wide range of topics, such as spousal support, assets like real estate and money, or the family’s post-divorce domicile.

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Additionally, there are postnuptial agreements, which are essentially the same as prenuptial agreements but are signed after the marriage has ended.

This article aims to provide an answer to the query of whether prenuptial agreements are under the purview of UAE Federal Law No. 28 of 2005 governing Personal Status (the “Personal Status Law”) or the more general UAE legal system. Making a distinction between non-Muslims, Muslim expats, and UAE citizens is vital to clarify this subject, and each group’s legal options must be considered.

Non-Muslims

Prenuptial and postnuptial agreements are generally acceptable, especially if the national laws of the contracting parties authorise enforcement of these sorts of arrangements and/or provide for matrimonial division following dissolution of marriage.

However, it’s crucial to distinguish between assets that are based in the UAE and those that are based outside. Article 1(2) of the Personal Status Law says with regard to UAE assets that

Explanation:

The United Arab Emirates’ inhabitants are subject to the requirements of this law, unless their non-Muslim members are also bound by rules that apply to their sect and denomination. Foreigners are likewise subject to its provisions, so long as none of them insist on enforcing it.

Additionally, Article 5 stipulates that “Personal status actions brought against residents or foreigners possessing a domicile, residence, or workplace in the state shall be tried by the state courts.”

Due to the aforementioned, pre/post-nuptial agreements between foreigners that meet the requirements outlined in Article 5 shall be enforceable in accordance with the governing law outlined therein, even with regard to UAE assets.

The laws that apply where those properties are located will determine whether the agreements can be enforced with regard to assets that are located outside of the UAE.

Muslim Expats:

It is important to distinguish between a Muslim expat who wants to enforce a prenuptial agreement when the divorce is still pending inside the UAE and when it has already been finalised outside the UAE.

The Personal Status Law will apply to divorce cases filed within the UAE, and the prenuptial agreement will be handled similarly to how it is for UAE citizens (for further information on this point we refer you to the section below) When a prenuptial agreement is enforced after a divorce is finalised outside of the United Arab Emirates, it will be seen as a case of doing so in accordance with UAE Law No. 5 of 1985 on Civil Transactions.

Islamic Shari’a:

Islamic Shari’a does not recognize the concept of marriage property for UAE nationals, instead emphasizing the spouses’ independent financial standing. As a result, neither spouse has any rights to ownership over any property that either spouse establishes or acquires during the marriage; it is always the sole property of that spouse.

Having said that, Shari’a does allow the creation of contracts governing the rights and obligations of spouses in a marriage as long as they do not conflict with Islamic Shari’a. Article 20 of the Personal Status Law, which permits the addition of written conditions in the official marriage certificate without restriction on their extent, codifies this notion.

Personal Status Law:

A marriage contract is no different from any other type of transaction, according to the explanatory note included with the Personal Status Law in connection to Article 20 of that document. Therefore, it is OK to include some conditions. There is disagreement among Shari’a scholars over the scope of the conditions, however everyone agrees that they should not go against Islamic Shari’a. Some scholars broaden the scope, while others narrow it.

Explanatory Memorandum:

The explanatory memorandum further states that in order to achieve the correct balance between public and private interests, the drafters of the Personal Status Law have taken the opinions of the Islamic philosopher Ahmed Ibn Hanbal, which cover a very wide range. Such a tendency would take into account the most recent changes in current society and acknowledge the necessity for parties to safeguard their interests while taking into account their unique personal situations. Marriage contracts can help in this way by increasing openness and clarity, saving time and money in the event of a divorce, and laying out exactly how assets are to be handled, preventing future possible conflicts at the beginning of a marriage.

Article 20:

The justification given above makes it possible to include any conditions, including those that regulate property rights between spouses, so long as they do not conflict with the general requirements stated in Article 20 paras. 1/2/3 of the Personal Status Law.

Benefits of including the Property Term:

The benefit of include the property terms in the official marriage contract as opposed to a separate agreement is that the conditions can be said to have been acknowledged and agreed to by both parties to the marriage without requiring any additional legal requirements to be met.

Civil Transactions Law:

The Civil Transactions Law must be followed when creating a postnuptial agreement, as in the situation mentioned above, to ensure that all formalities and legal criteria are followed. Another thing to keep in mind is that personal status courts’ processes are typically quicker than those of civil courts, especially when one considers that in personal status cases, the court of cassation must make decisions directly in cases that come before it, whereas in civil court processes, the court of cassation can send the case back to the court of appeal.

In light of the foregoing, one can draw the conclusion that a marriage contract (similar to a prenuptial agreement) entered into between spouses and providing for the handling of marital assets, money, or alimony, or alternatively where one spouse agrees to transfer certain assets to the other upon divorce, is very likely to be upheld by the personal status courts.

Pre/Post-Nuptial Agreements Importance:

Additionally, pre/post-nuptial agreements are especially important when it comes to assets based outside the UAE and in nations that recognise and uphold this type of arrangement, provided that fundamental requirements, such financial disclosure and independent legal counsel, are met. It is crucial to have a contract that governs these assets, especially when the wife is a foreign national. In many situations, if the concerned wife is a foreign national, she would be able to file legal claims against these assets in the event of a divorce.

If you have any trouble with your pre-nuptial agreements or any other marriage contract problems you can contact marriage lawyers at Sara Advocates and Legal Consultants. Our lawyers will thoroughly examine your case and point the right course of direction for you to get your legal rights served.