Explained: Prenuptial agreement in the UAE

Prenuptial agreements are a common practice today, with more people choosing this legal method increasingly. There are two ways to go about it; one is a ‘Prenuptial Agreement’ and the other a ‘Postnuptial Agreement’. Wherein, the prenuptial agreement is entered into prior to the marriage and the postnuptial agreement after the marriage, and both aim to have a binding agreement in place for the protection of assets in the event of a future divorce.

Prenuptial or postnuptial agreements can also be extensive and may cover many areas such as asset division, spousal support, property division etc.

In this article, we will discuss the legality of entering into a prenuptial agreement in the UAE and also instances wherein a postnuptial agreement is better suited.

For Non – Muslim expats:

The federal law no. 28 of 2005 on personal status (‘personal status law’) and its amendments apply to all the citizens and non -citizens in the UAE, unless non-Muslims among them have special provisions applicable to their community. In the instance of non -Muslim expats, the applicability and enforceability of a prenuptial agreement can be very often governed by their home country laws. As such, it can be said that, in general, prenuptial and postnuptial agreements would be permissible for non -Muslim expats as long as their home country laws permit its application and enforceability.

Further to this, it is also important to understand that with the recent changes made to the civil transaction law no. 5 of 1985, which revises article 13 of the said law (replaced by virtue of Article 1 of Federal Decree-Law No. 30/2020), now the applicable law governing the marriage and related rights (including divorce) for non-Muslim expats would be as per the law of the country where the marriage took place.

Article 13 reads as follows: 1- The law of the State where the marriage was concluded shall govern the personal and financial impacts resulting from the contract of marriage.2- Divorce, repudiation and separation shall be governed by the law of the State where the marriage was concluded.

For Non – Muslim:

For Muslims, the Islamic Sharia principles apply and are pursuant to the same in the instance of divorce, and personal assets are treated in the manner that all properties acquired by the spouses either before or during the marriage remain the sole property of that spouse. However, the Sharia law also recognizes marriage contracts, and by the same, postnuptial agreement can be entered into between the spouses as long as the terms of the contract do not contradict the Islamic sharia principles. For divorces that are initiated within the UAE, the above provisions will apply to Muslims who are either citizens or residents of the UAE.

Article 20 of the Personal Status law states that,

Article 20

1. Spouses are bound by the conditions exchanged except those legitimizing the illicit or banning the legitimate.
2. Where the contract of marriage contains a condition that is inconsistent with the foundations of marriage, the contract is void.
3. Where the contract is subject to a condition that is not inconsistent with the foundations of marriage but is in contradiction with its requirements or is considered illicit by law, the condition is void but the contract valid.
4. If neither inconsistent with the foundations of marriage nor in contradiction with its requirements and if not legally banned, the condition is valid and should be fulfilled. In default thereof, the party benefiting of such condition may rescind the marriage, whether he be the husband or the wife, and the former shall be exempted from alimony, payable during the waiting period following the dissolution of marriage, if the defaulter is the wife.
5. Should any of the spouse’s conditions in the other a specific attribute but the contrary was revealed, the party requiring such attribute may ask for rescission of the marriage.
6. Disavowal negates the effect of any condition unless it is written in the registered contract of marriage.
7. The right to rescind a contract is foreclosed if forfeited by its owner or if he expressly or impliedly accepts the contrary. Shall be considered an implied acceptance, the lapse of one year following the occurrence of the violation with knowledge thereof and in case of irrevocable divorce.

Thus, it could be thus seen that both prenuptial and postnuptial agreements can be considered legally enforceable, subject to applicable preconditions in the UAE. However, one set of rules do not apply to all, and specialized legal opinion should be sought from lawyers before entering into binding agreements that have far-reaching consequences.

Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.