Validity of foreign Nuptial Agreements in the UAE
Through the years, there has been a growing interest in both Pre and Post-Nuptial Agreements. We often get asked whether a foreign Nuptial Agreement that is recorded in writing will be recognised in the UAE. In general, in the UAE, Pre and Post-Nuptial Agreements are permissible for non-Muslim expats as long as their home Country Laws permit its application and enforceability and provided that it is not in conflict with UAE Islamic Sharia, public order or morals as outlined in Article 27 of the Civil Transactions Code.
However, the UAE Courts can only enforce Pre-Nuptial Agreements as a part of a divorce agreement. Therefore, despite there being a Pre or Post-Nuptial Agreement, in the event of a contested Divorce case, all documents submitted before the UAE Courts will need to be translated into Arabic and the translations stamped by the Ministries of Foreign Affairs and Justice. This could prove to be a costly exercise.
To ensure that the UAE Courts would enforce the terms of the Nuptial Agreement, the following should be adhered to :
• The terms of the agreement must be fair at the time the agreement is entered into.
• Both parties must understand the contents of the nuptial agreement and their effect.
• Both parties should, independently, be legally advised on the contents of the nuptial agreement.
• Neither party must be coerced into signing the agreement and must have had ample time to consider the contents and ramifications of the agreement.
• The parties should exchange information about their financial circumstances and disclose all assets (purchased before and during the marriage).
The UAE Courts may find specific clauses that are invalid but would still uphold other parts of an Agreement. Therefore, it is best practice to ensure that you consider and are advised on any clauses which may offend the principles of UAE Sharia Law. Clauses relating to child support should be in line with local legislation and should provide for at least the minimum that is required by local legislation. Further a party should not waive the right of receiving child support. Another example is where an agreement is grossly unfair wherein one party prospers financially with the other party facing extreme financial hardship. In this case, the UAE Courts are likely to consider the clause as invalid.
The UAE Courts do not provide for sharing of assets, wealth or income on divorce, following the breakdown of a marriage, therefore each party usually retains the assets that are in their name. Any joint property, whether purchased by either party separately or jointly, or property that is disputed can be dealt with by the Courts independently from the family law proceedings whereby the Court can determine the contributions made by each party to the acquisition of the asset. Each party must provide evidence of their contribution with the Judge having a wide discretion as to who the property / asset is awarded to. Further, in the event of divorce, an agreement can give a spouse protection from being liable for any debt that the other spouse brings into a marriage.
As Nuptial Agreements are viewed as a civil contract between the two parties, the UAE Court does not consider them independently from divorce proceedings and they can only be enforced when factored into a divorce agreement through a process of attestation whereby the relevant Embassies and the Ministry of Foreign Affairs confirm that the documents are valid and applicable to the parties. However, as above, assets held in other jurisdictions are never subject to any family law proceedings unless the Parties agree to have the UAE Court apply the proven and applicable foreign Law.
The above is a general outline and should not be construed as legal advice. For specific information or advice in relation to any family matters, please contact our Family Department
https://jamesberrylaw.com/news-details/1313/validity-of-foreign-nuptial-agreements-in-the-uae
