Prenuptial agreements (also known as premarital agreements) are increasingly common tools for couples planning for the future, particularly in the context of marriage, remarriage, and even civil marriage. These agreements clarify how assets will be divided in the event of divorce, covering issues like spousal support, real estate, finances, and family residence. Postnuptial agreements, similar to prenuptial agreements, are created after the marriage. This article explores the status, applicability, and enforceability of prenuptial and postnuptial agreements under UAE Federal Law No. 28 of 2005 concerning Personal Status (the "Personal Status Law") and the broader UAE legal framework, distinguishing between non-Muslims, Muslim expats, and UAE nationals.
Prenuptial Agreements for Non-Muslims in the UAE:
Prenuptial and postnuptial agreements are generally permissible for non-Muslims in the UAE, especially if their home countries recognize such agreements. However, a distinction must be made between assets located within the UAE and those abroad.
- UAE Assets: Article 1(2) of the Personal Status Law applies to UAE citizens unless non-Muslims among them are subject to specific provisions of their sect. It also applies to foreigners unless they insist on applying their own law. Article 5 grants UAE courts jurisdiction over personal status actions against citizens or foreigners residing or working in the UAE. Therefore, prenuptial/postnuptial agreements between foreigners meeting Article 5 criteria are enforceable in the UAE, even for UAE-based assets, according to the applicable governing law.
- Foreign Assets: The enforceability of prenuptial agreements for assets located outside the UAE depends on the laws of the jurisdiction where the assets are located.
Prenuptial Agreements for Muslim Expats in the UAE:
For Muslim expats, the enforceability of a prenuptial agreement depends on whether divorce proceedings occur within or outside the UAE:
- Divorce in the UAE: The Personal Status Law applies, and the prenuptial agreement is treated similarly to those of UAE nationals.
- Divorce Outside the UAE: The prenuptial agreement is considered a contractual agreement and is subject to UAE Federal Law No. 5 of 1985 concerning Civil Transactions.
Prenuptial Agreements for UAE Nationals:
Islamic Sharia law, while recognizing the separate financial identities of spouses, doesn't explicitly recognize "matrimonial property." Assets acquired during marriage belong solely to the acquiring spouse. However, Sharia permits marriage-related agreements, provided they don't contradict Islamic principles.
Article 20 of the Personal Status Law allows for written conditions in marriage certificates. While Sharia scholars differ on the scope of permissible conditions, all agree they cannot violate Sharia. The explanatory memorandum for the Personal Status Law adopts a broad interpretation, accommodating modern societal developments and allowing parties to protect their interests. This suggests that conditions regulating property rights are permissible, as long as they comply with Article 20.
A Dubai Court of Cassation case (No. 2 of 2010) highlights the importance of including property-related conditions in the marriage certificate or adhering to the Civil Transactions Law. This case suggests that properly drafted prenuptial agreements, even those addressing property, can be enforceable. Including conditions in the official marriage contract offers advantages over separate agreements, as it establishes mutual agreement without further legal formalities.
Key Considerations for Prenuptial Agreements in the UAE:
- Clarity and Specificity: Prenuptial agreements should clearly and specifically outline asset division, spousal support, and other relevant matters.
- Compliance with Law: The agreement must comply with the Personal Status Law and other applicable UAE laws, including the Civil Transactions Law for separate agreements.
- Legal Counsel: Independent legal counsel is strongly recommended for both parties to ensure they understand their rights and obligations.
- Financial Disclosure: Full financial disclosure by both parties is essential for a valid and enforceable agreement.
- Sharia Compliance (for Muslims): For Muslim couples, the agreement should be reviewed by a Sharia scholar to ensure compliance with Islamic principles.
Prenuptial Agreements and Remarriage/Civil Marriage:
The principles discussed above generally apply to remarriage and civil marriage in the UAE, with necessary adaptations. It is crucial to consult with a legal professional specializing in family law to address the specific circumstances of each case.
Conclusion:
Prenuptial agreements, when properly drafted and compliant with UAE law, can provide clarity and protection for couples entering marriage, remarriage, or civil marriage. They are particularly important for managing assets located both within and outside the UAE, and especially when one spouse is a foreign national. Seeking professional legal advice is essential to ensure the agreement is valid, enforceable, and tailored to the specific needs of the parties involved.