Marriage Contracts in the UAE: To Prenup or No?

Introduction

Prenuptial or premarital agreements have become a common legal instrument to outline the division of assets between future spouses in the event of a divorce. These agreements may encompass various issues, including spousal support, assets such as real estate and financial holdings, and the post-divorce residence of the family.

Additionally, postnuptial agreements, which are similar to prenuptial agreements, are established after the marriage has concluded.

This article aims to examine the status, applicability, and enforceability of prenuptial agreements under UAE Federal Law No. 28 of 2005 concerning Personal Status (“Personal Status Law”) and the broader UAE legal framework. To address this question, it is necessary to differentiate between non-Muslims, Muslim expatriates, and UAE nationals, and to explore the legal remedies available to each group.

Non-Muslims

In general, prenuptial and postnuptial agreements are permissible, particularly if the national laws of the contracting parties provide for matrimonial distribution upon the dissolution of marriage and/or allow for the enforceability of these agreements. However, it is important to distinguish between assets located in the UAE and those located abroad. With respect to UAE assets, Article 1(2) of the Personal Status Law states:

"The provisions of this law shall apply to the citizens of the United Arab Emirates unless the non-Muslims of them are subject to special provisions applicable to their sect and denomination, its provisions shall also apply to foreigners as long as none of them insists on applying his law."

Further, Article 5 states:

"The state courts shall be competent to try personal status actions initiated against citizens or foreigners having a domicile, residence, or workplace in the state."

Based on the above, prenuptial and postnuptial agreements between foreigners that meet the criteria outlined in Article 5 are enforceable in accordance with the governing law specified therein, even for UAE assets.

Regarding assets located outside the UAE, the enforceability of the agreements is subject to the prevailing law where the properties are situated.

Muslim Expatriates

It is essential to distinguish between a Muslim expatriate seeking to enforce a prenuptial agreement (a) within the context of divorce proceedings taking place in the UAE and (b) after the divorce has been finalized outside of the UAE.

For divorce proceedings initiated in the UAE, the Personal Status Law applies, and the prenuptial agreement is treated similarly to how it is for UAE nationals (refer to the section below for more details). If the prenuptial agreement is enforced post-divorce outside the UAE, it will be considered a case of enforcing a contractual agreement, subject to UAE Law No. 5 of 1985 concerning Civil Transactions.

UAE Nationals

Islamic Shari'a does not recognize the principle of matrimonial property but rather the autonomous financial status of the spouses. Therefore, all properties established or acquired by either spouse during the marriage remain the sole property of that spouse, with no rights or claims by the other spouse.

That said, Shari'a permits entering into agreements relating to marriage between spouses to govern their rights and obligations, provided they do not contradict Islamic Shari'a. This principle is codified in Article 20 of the Personal Status Law, which allows for the inclusion of written conditions in the official marriage certificate without limitation on the scope of the conditions.

The explanatory memorandum issued with the Personal Status Law states that contracts should codify parties' best interests and that a marriage contract is no different from any other form of contract. Therefore, the inclusion of specific conditions is permissible. However, there is a difference of opinion among Shari'a scholars regarding the scope of these conditions. Some broaden the scope, while others limit it. All agree, however, that the conditions should not contradict Islamic Shari'a.

The explanatory memorandum further indicates that the drafters of the Personal Status Law have adopted the views of the Islamic scholar Ahmed Ibn Hanbal, which embrace a wide scope to balance public and private interests. This approach accommodates contemporary societal developments and recognizes the need for parties to protect their interests while considering their personal circumstances. As a result, marriage contracts can provide greater clarity and transparency, save time and money in the event of divorce, and set out how assets are to be handled, thereby avoiding potential future disputes at the outset of a marriage.

This explanation opens the door for including any conditions, even those that regulate property rights between spouses, provided they do not contradict the overarching conditions set out in Article 20 paragraphs 1/2/3 of the Personal Status Law.

There is limited case law regarding marriage contract conditions related to property. However, an important precedent is Dubai's Court of Cassation Case No. 2 of 2010, where a wife sought a divorce on the grounds of harm and claimed that the continuation of the marriage was impossible. She further sought to enforce a postnuptial agreement in which her husband had promised her a house in the UAE registered in her name. In its decision dated 28 September 2010, the court granted her the divorce. However, regarding the postnuptial agreement, the court held that since the pledge/condition to buy her a house was not included in the marriage certificate, it fell outside the scope of Article 20 of the Personal Status Law. Accordingly, the court would need to interpret the written agreement in accordance with the Civil Transactions Law. It is worth noting that the court rejected the wife's request not because it was written in a separate agreement after the marriage took place but because the wording of the agreement did not meet the requirements specified by the Civil Transactions Law, namely, the essential elements of a contract, i.e., offer and acceptance, were not present in the agreement.

This judgment indicates that if the condition had been included in the marriage certificate or if the terms had fulfilled the requirements of the Civil Transactions Law, the court would have enforced the contract.

The advantage of having property conditions specified in the official marriage contract, rather than a separate agreement, is that the terms are considered agreed upon and accepted by both parties to the marriage without requiring any further legalities. In the case of a postnuptial agreement, as in the case mentioned above, one must comply with the Civil Transactions Law to ensure all requisite formalities and legal requirements are met. Another factor to consider is that personal status court proceedings tend to be faster than civil court proceedings, particularly since, in personal status cases, the court of cassation must rule directly on cases before it, whereas in civil court processes, the court of cassation can refer the case back to the court of appeal.

In light of the above, it can be concluded that a marriage contract (akin to a prenuptial agreement) entered into between spouses, in which matrimonial assets, money, or alimony are addressed, or where one spouse undertakes to transfer certain assets to the other upon divorce, is highly likely to be upheld by the personal status courts.

Furthermore, prenuptial and postnuptial agreements are particularly relevant for properties based outside the UAE and in countries that recognize and enforce such agreements, provided that basic conditions such as financial disclosure and separate legal counseling are met. Regulating such properties through an agreement is crucial, especially when the wife is a foreign national. In many cases, if the wife is a foreign national, she would be in a position to undertake proceedings against these properties in the event of a divorce.

Conclusion

Regulating and safeguarding rights concerning matrimonial assets and other conditions are crucial for any marriage and even more so in the event of a divorce to ensure a smooth and fair transition and resolution for the parties involved.