There were no provisions related to Pre-nuptial agreements in the Personal Status Law of the UAE, although a Pre-Nuptial agreement drafted as per the Civil Transaction law was in principle enforceable in the UAE courts during a matter of Divorce, as long as the pre-nuptial agreement is carefully drafted and that it complies with the Sharia Law principles and morals, because the provisions of the agreement may only be considered by the court if they do not conflict with the provisions of the UAE law, public policy and morals.
However, in a recent development, as a progressive and groundbreaking move, the United Arab Emirates introduced Federal Decree Law No. 41 of 2022 on Civil Personal Status for Non-Muslims in the UAE. This law brings transformative changes to the divorce landscape for non-Muslim expatriates in the UAE, and explicitly recognizes pre-nuptial agreements.
In fact, Article (6) of Federal Decree Law No. 41 of 2022 provides that Parties can agree on conditions in the marriage contract, and the contract will prevail over the Law as regards the parties. The terms can include (among others) rights of the Parties during marriage, post-divorce rights and custody of children.
The UAE court can only consider a pre-nuptial agreement during the process of divorce. Therefore to ensure that the court enforces the agreement during divorce proceedings, there are various factors which can be shown to prove that the pre-nuptial agreement was properly executed, one such example would be to show that parties have mutually agreed to enter into the pre-nuptial agreement without any due coercion and with full knowledge of its terms.
Unlike any other form of agreement, a pre-nuptial agreement should be drafted keeping in mind the importance of marriage and consider matrimonial and financial aspects of the family prior to and following divorce.
Parties should be made aware of the pros and cons of entering into a pre-nuptial agreement since there is always an emotional element attached to such an undertaking. Looking on the safe side, preparing a pre-nuptial agreement can eliminate a considerable amount of confusion if the spouses feel that their rights and interests will be at risk. The spouses can ensure that they have defined their role throughout the marriage, which may reduce most of the future arguments. Moreover, the spouses can allocate their desired financials through defining pre-hand such allocation before the marriage.
The husband and wife who are preparing to marry should also be aware that such an agreement may result in a loss of love and affection between the parties if they are not carefully guided by adept professionals and emotionally prepared, as one might feel that they are merely entering into an agreement rather than a marital relationship, this can have a negative effect towards the marriage as well as loss of trust between the parties involved.