What is a Pre-Nuptial Agreement?

A Pre-Nuptial Agreement or a pre-marital agreement  (hereinafter “Agreement” )is an agreement made to resolve legal and financial problems arising between spouses in the eventuality of breakdown of their marriage. It is a written contract entered into by a couple prior to them entering into marriage, which regulates their division and distribution of their assets after their separation.

A pre-nuptial agreement has become highly relevant with the rise in income and wealth of the society. The couple can incorporate clauses that would cater to a number of issues likely to arise amongst couples, like spousal support, custody of children born out of that marriage, inheritance rights of children from previous marriage, management of assets and property both movable and immovable, etc.  Thus such Agreements assure a smooth and hassle free separation.

Process of Divorce in UAE

There are two ways of terminating a marriage, one is by pronouncing divorce or ‘talaq’ which is applicable only to Muslims and the other is by application to the court for divorce. Only the latter method is applicable to Non-Muslim expatriates living in UAE.  After the applicant makes an application to apply for divorce, the parties are referred to the Family Guidance Centres to mediate and resolve their disputes. This Centre tries its best to reconcile the parties in case there are chances to keep the family intact, however if reconciliation is not at all possible, the Centre shall then refer the matter to the Judge for a hearing. Thereafter,  it is the discretion of the judge to decide whether there exists any valid reason for divorce. Some of the grounds of divorce are sterility, sexual impediment, deception, adultery, any one spouse suffering from any fatal communicable disease, prejudice that makes the continuation of marriage impossible etc. Following the separation, iddat is to be observed by the wife in case of Muslims.

Legal Validity of Pre-Nuptial Agreements

Earlier pre-nuptial agreements were considered to be an incentive to the less affluent spouse for breaking down the marriage for financial gains, and hence it was highly discouraged by the society and was also looked down upon by the courts. But, with rise in equal financial earning capabilities of men and women, it has served as an effective legal tool to avoid legal issues related to a breakdown of a marriage which is a personal matter.

To understand the validity of pre-nuptial agreements in UAE, it is necessary to look at personal laws governing the citizens and residents of the UAE. The UAE Federal Law No 28 of 2005 in regard to Personal Status Law differentiates between Muslims, Non-Muslims and UAE expatriates as relating to Pre-nuptial agreements.

• Non-Muslims

Article 1(2) of the Personal Status Law states that it would be applicable to all citizens of UAE unless, Non-Muslims have special laws applicable to their community or confession. Also a reading of Article 5 along with Article 1(2) clarifies that pre-nuptial agreements between foreigners who have a domicile, residence or workplace in UAE will be enforceable in the court of law.

• Muslim Expatriates

Courts have the jurisdiction to take up cases in which either the applicant or respondent has domicile, residence or their place of work in UAE. This applies not only to Muslim Expatriates but also to Emirati Nationals. When Muslim expatriates initiate divorce proceedings in UAE, the Personal Status Law shall be applicable and if initiated outside UAE, then the Agreement would be enforceable subject to UAE Federal Law No 28 of 2005.

• UAE Nationals

Under Shari’a, even after marriage both the spouses acquire and own properties individually and there exists no concept of joint conjugal ownership, thus it is evident that Shari’a does allow agreements between spouses governing their rights, which are termed today as pre-nuptial agreements. This is reflected in Article 20 of the Personal Status Law which provides for the inclusion of written conditions in the official marriage certificates without limitation as to the scope of the conditions, but the only restriction in these conditions is that any such written condition must not override the provisions of Islamic Shari’a.

Benefits of a Pre-Nuptial Agreement

A pre-nuptial agreement acts as a tool which enables the parties to peacefully resolve many issues, amongst which some are listed down:

1. Pre-nuptial agreements empower the parties to decide the fate of their assets. In then absence of any such Agreement, the state’s law determines the ownership of the properties acquired by the party during the marriage.
2. A pre-nuptial agreement saves time and money of the parties. A properly drafted pre-nuptial agreement allows the parties for a smooth way out of the marriage and addresses efficiently the most common legal problems.
3. It saves the party from others accumulated debts.

Conclusion

Hence, it is seen that a pre-nuptial agreement entered into by spouses prior to getting married can prove to be very beneficial with regards to issues that may arise post separation. Matters relating to financials, maintenance, child support and custody etc. can be agreed by the partied prior to entering into marriage through such an Agreement. It is also beneficial to couples whose assets are situated outside UAE, as they can collectively decide and determine the distribution of their assets as per their wishes and not as per the State’s personal laws.

Thus, we conclude that in today’s societal conditions where the rate of divorce is increasing in UAE and across the globe and both parties have a fair share of accumulated wealth and assets, a  pre-nuptial agreement can ensure that legal battles in the eventuality of separation does not take away the better portion of the lives of both the spouses and also helps make the separation amicable and comfortable for the parties involved and their families.