In common parlance, a prenuptial agreement or a premarital agreement means an agreement entered into by a couple prior to their marriage which regulates the rights that may be acquired upon marriage and the arrangements between the parties in the event of a divorce.
In this article, we will discuss the validity, applicability and enforcement of a prenuptial agreement under the UAE Laws.
Which are the applicable UAE Laws?
Before we discuss the pre-nuptial agreement, it is first crucial to understand the laws which govern family disputes in the UAE, especially since UAE is the home for so many Muslim and Non-Muslim expats.
The law which regulates personal status matters in the UAE is the Federal Law No. 28 of 2005 on Personal Status, commonly called the UAE Personal Status Law. In addition, the Federal Law No 5 of 1985, which is the Civil Transactions Law is also applicable.
If you are in Abu Dhabi and a non-Muslim, then Abu Dhabi Law No 14 of 2021 may be applicable to you. However, the UAE Personal Status Law will continue to apply to Muslims in Abu Dhabi.
What do the UAE Laws say about a pre-nuptial agreement?
Under the UAE Laws, there is no concept of a pre-nuptial agreement. Therefore, a prenuptial agreement drafted and executed in the UAE may not be enforceable since the UAE Laws do not recognize a pre-nuptial agreement.
If a pre-nuptial agreement is drafted in a foreign jurisdiction, it is unlikely that it will be enforced in the UAE courts, especially if the agreement relates to matters of children. That said, it should be noted that the Civil Transactions Law has been recently amended which may have an impact on the validity and enforceability of a pre-nuptial agreement.
Under the new amended Article 13 of the Civil Transactions Law, the personal and financial matters resulting from the contract of marriage will be governed by the law of the country where the couple was married.
This would mean that the validity and enforceability of a prenuptial agreement which has been drafted and executed in a foreign jurisdiction could be considered by the UAE courts by applying the laws of the country where the parties were married.
It is also important to note that ultimately the UAE courts have the discretion on whether to accept or reject the request of applying foreign laws in a family matter. This would be dependent on the merits of each case. For instance, if the party has multiple nationalities, then, as per Article 24 of the UAE Personal Status Law, the UAE courts may reject the application of foreign law.
Once the request for the application of foreign law has been rejected, the UAE courts may apply UAE laws according to Article 1/3 of the UAE Personal Status Law. Article 1/3 of the UAE Personal Status Law states that the UAE Personal Status Law will apply to non-citizens as well.
What is the alternative to a prenuptial agreement in the UAE?
An alternate option to a prenuptial agreement would be for the parties to enter into a postnuptial agreement.
A postnuptial agreement is signed between a couple after their marriage. This agreement will set out the financial arrangement between the parties. Financial arrangement will not be considered to be against public order as long as the arrangement does not deprive the wife’s right to claim expenses. It is also important to note that it is not allowed for the parties to agree on the forfeiture or waiver of custody rights or children’s maintenance under this agreement.
This post nuptial agreement is prepared in Arabic but can be translated into English language.
What is the process of executing such a postnuptial agreement?
The agreement can be executed in the UAE family courts. The Family Guidance Department is the special department in the family courts which is tasked with the execution of such documents. One of the parties to the agreement should be a resident in order to file an application with the Family Guidance Department to register or execute this agreement.
All expatriate residents in the UAE can also avail these services and register their post nuptial agreement in the Family Guidance Department. However, it is important to note that the post nuptial agreement is usually physically signed by the parties before the Family Guidance Department itself.
What is the advantage of executing a postnuptial agreement?
The biggest advantage of signing a postnuptial agreement is evidenced when a dispute between the parties occurs. In that case, execution proceedings based on the terms of this agreement can be directly started and enforcement is relatively easier.
In case you wish to use the post nuptial agreement outside the UAE, you may need to get the executed postnuptial agreement legalized appropriately up until the embassy of such a country where you would want to use this agreement.
Disclaimer:
The above information might not apply if both parties are non-Muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-Muslim expat residents in case none of them wanted to apply his/her home country's law in the UAE. To know more information about this law, please feel free to click this linkCopyright © of this article is retained by the author and/or other copyright owners. We explicitly grant you permission to download a copy, without any alteration, of this article for personal non-commercial research or study, without prior permission or any charge. This article can be utilized on your website or for marketing, however, we grant you permission to host this article on your website and no other rights. This content should not be altered in any way or sold commercially in any format without prior permission of the copyright holder. During reference of this article, full biographic details entailing the name of the author, his designation, the institute and the publishing date of the article shall be provided.
