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- Ask Elhais
October 10, 2013
Muslim couples (Emirati and expatriate) enter into a marriage contract (Nikah') if they conduct an Islamic marriage in a Muslim jurisdiction or elsewhere.
To what extent are pre and post nups binding within the jurisdiction?
Within the marriage contract is a section which allows for a dowry ('Meher') to be specified. The dowry is the payment of a sum of money/ valuables to the wife, paid partly on marriage (the Mokadam) and partly in the event of divorce/ husband's death. The dowry must be present in the contract to ensure its legal validity. The marriage contract has been compared to a pre nuptial agreement because of the dowry, but it is far from this. There are restrictions as to what can be included within the marriage contract, those that are contrary to public order or Islamic Shari'a will not be included.
Some wives may use the Dowry term to give them a bargaining position, and agree to receive a lesser dowry on alternative terms to their benefit. The marriage contract is negotiated and agreed by the husband and the wife's father or other male guardian, often with the benefit of legal advice (although this is not required).
If a Muslim couple wish to rely on a pre-nuptial agreement validly drafted in another jurisdiction, it is likely that the UAE courts would not choose to enforce the terms especially in relation to children. This is because under Sharia law a couple could not enter into an agreement concerning children that have not yet been born.
The contract will be void or voidable if any term in the agreement conflicts with Islamic Shari'aFeature Articles, public order or morals in the UAE (Article 27 Civil Procedure Law). Public order is defined at Article 3 Civil Procedure as 'matters relating to personal status'. This means that any terms in the contract that are against or conflicting with UAE morals (for example reference to unmarried cohabiting couples) would be void.