Prenuptial Agreements in the UAE for Non-Muslims: Your Guide to a Strong and Secure Marital Foundation

In today’s UAE, as more Non-Muslim expats consider tying the knot, there’s a noticeable trend of approaching marriage with foresight and practical planning. More and more couples are embracing a clear-headed approach to their future together, balancing love with a thoughtful awareness of their rights and interests. As lawyers, we welcome this shift toward conscious and informed decision-making. We’re here to help couples create and structure their agreements before marriage, ensuring that both partners' interests are protected smoothly and without unnecessary conflict.

What is a Prenuptial Agreement?

A prenuptial agreement is a legal contract between future spouses made before marriage. It outlines each partner’s rights, obligations, and responsibilities both during the marriage and, crucially, in the event of separation or divorce — times when reaching an agreement can be challenging. The main purpose of a prenup is to protect each person’s individual assets and interests, making it especially useful for those with previous marriages, children, or significant financial differences. In short, it’s a proactive way for couples to begin their journey together with transparency and security.

What Key Legal Factors Should You Consider Before Saying “I do”?

A. Validity of Non-Muslim Prenups in the UAE

The UAE laws are based on Sharia principles, which traditionally do not recognise prenuptial agreements, meaning they might be seen as invalid or unenforceable by local courts. However, with a growing number of non-Muslim expat community, there was a need for tailored legislation for foreigners. Federal Decree-Law No. 41 of 2022 on Civil Personal Status addresses the issue, introducing important updates for marriage, divorce, custody, alimony, parentage and inheritance for non-Muslim expats who choose not to apply their home country’s laws in the UAE. Most notably, Article 6(2) of this law allows non-Muslim couples to create prenuptial agreements, giving them greater clarity, security, and control over their marital arrangements.

B. Choosing the Right Law for Your Prenup: What You Need to Know

Selecting the appropriate law to govern a prenuptial agreement can be complex and requires careful consideration to ensure fairness and enforceability of the contract itself. Non-Muslim couples planning to live in the UAE may choose to apply the UAE laws for non-Muslims to their prenups, which covers family and personal matters. However, it’s essential to determine whether the UAE law will apply to the entire prenuptial agreement or only specific parts or relations. Key factors to consider include:

• Personal Law of Each Partner: Typically, a person’s personal law is the law of their citizenship country. If a partner holds multiple citizenships, it may be the law of the country they’re most closely connected to, often through residency or primary business activities. It is also important to verify whether the personal law allows for prenuptial agreements and permits freedom in choosing the governing law.
• Law Governing Immovable Property: Real estate usually follows the law of the country where the property is located. If either partner owns property in another country, that country’s laws may influence property-related terms in the prenuptial agreement.
• Law Related to Children’s Matters: Issues involving children, such as custody or financial support, may be governed by the child’s personal law (usually based on nationality) or a law that closely relates to the relationship in question and is more favourable to the child.
• International Agreements: In some cases, there may be international agreements on family, civil, or commercial matters between the UAE and the partners’ home countries. These agreements can influence the applicable law and jurisdiction, helping to determine which country’s courts will have authority over specific disputes.

C. The Form of Prenuptial Agreement for Non-Muslims

There are no explicit legal requirements under UAE law regarding the form and content of prenuptial agreements for Non-Muslims. However, it is advisable to adhere to the following requirements:

• Written Form. The agreement should be in writing and signed by both parties in the presence of witnesses. This ensures that both partners willingly and voluntarily entered into the prenup without coercion.
• Clear Language. The agreement should be well-drafted, using straightforward and easily understandable language. This minimises the risk of future misunderstandings or disputes regarding the interpretation of its terms.
• Registration (Optional): Although some lawyers suggest registering the prenuptial agreement with local courts or relevant authorities, this isn’t strictly required by law. A properly drafted and signed agreement should still be enforceable in court, even without formal registration.

D. Essential Steps for a Valid and Enforceable Prenuptial Agreement

To create a strong and enforceable prenuptial agreement, here are some essential steps to consider:

• Sign Well Before the Wedding: Finalise the prenuptial agreement well ahead of the wedding date. Although there’s no set timeline, both partners should have ample time to review and fully understand the terms without feeling rushed by the approaching wedding. Ideally, the prenup should be signed at least one month before the wedding date.
• Full Financial Disclosure: Both partners should openly share their financial situations and disclose their material property. Clear and honest disclosure of assets, debts, and other financial details is critical for a fair agreement. Failure to disclose may be later leveraged by the spouse to challenge the terms and fairness of the prenuptial agreement.
• Independent Legal Advice: Both partners should have the chance to seek independent legal advice. While having two separate advisors is beneficial, it’s also acceptable to consult one mutually agreed-upon lawyer. Legal guidance ensures both partners understand the agreement and its implications fully. It is recommended to obtain a written statement from the lawyer to confirm the fact that the advice was given and received.
• No Pressure or Coercion: The agreement must expressly reflect that neither partner was pressured into signing. To further confirm this, the document should be signed in the presence of witnesses, as mentioned above.

E. Five Must-Haves for Your Prenup: What to Include for Proper Protection

To ensure a prenuptial agreement effectively protects both partners' rights and interests, it’s important to carefully consider its content and term, and ensure that they are properly designed and well-drafted. Here are the five essential areas to focus on:

• Separate and Joint Property: Clearly specify which assets are considered separate and which are joint, and outline each partner's shares in any joint assets. For example, it’s important to clarify, based on applicable law, whether joint property will be owned by the spouses equally or according to each partner’s contribution, or otherwise. These precise terms around property ownership help ensure that assets are divided as intended in the event of separation or divorce.
• Children’s Care and Custody: Outline detailed provisions for children’s care, including custody arrangements, living arrangements in case of separation, financial support, and other essentials such as education, healthcare, and housing. These terms provide clarity and security, ensuring the well-being of your children is prioritised. Always consult the personal law of children to ensure that the relevant prenup terms are legit.
• Financial Maintenance and Support: Clearly specify any child and spousal alimony arrangements in case of separation or divorce, detailing the amount, terms, and duration. This transparency helps prevent future disputes by clearly defining financial responsibilities. Keep in mind that factors like the partner’s or child’s country of residence and relevant laws may affect the amount and duration of support, so it’s essential to consider them to ensure fair and legally compliant arrangements.
• Protection Against Unauthorised Asset Transfers: Include a clause that prevents either partner from disposing of assets to bypass the terms of the agreement, thus safeguarding each party’s rights as set forth in the prenuptial agreement.
• Regular Review of the Agreement: Indicate the timing and circumstances under which the prenuptial agreement should be revised. Typical reasons for review might include reaching a certain number of years (such as ten), significant life events like the birth of a child, notable changes in financial situation, etc. Periodic reviews ensure the agreement remains fair and relevant, adjusting as needed to reflect the changing situations of both partners.

Conclusion

To sum up, drafting a prenuptial agreement is a complex process that demands careful assessment of numerous factors. Missing key legal considerations could lead to an invalid or unenforceable contract, potentially nullifying both partners’ intentions to protect their rights and interests. Additionally, different laws may impact the agreement’s enforceability across various jurisdictions, especially if either partner has assets, business interests, or family ties in multiple countries.

Given these complexities, obtaining tailored legal advice is crucial to ensure that the agreement not only aligns with both partners’ goals but also complies with applicable laws. We can help you navigate this intricate process by providing expert legal guidance, drafting a comprehensive prenuptial agreement, and addressing cross-jurisdictional concerns. Contact us today to safeguard your interests and create a solid foundation for your future.