What Exactly is an Islamic Prenuptial Agreement?
An Islamic prenuptial agreement is a contract drawn up prior to marriage that contains details pertaining to various agreements, including financial ones, agreed upon by both the husband and wife. An Islamic prenuptial agreement contains conditions and limitations that are based on Islamic law, as well as Islamic perspectives on the handling of certain matters, such as custody of children, financial obligations and rights of inheritance. Depending on how the document is drafted, it can provide more detailed provisions than a standard prenuptial agreement. As such, these agreements may contain limitations on the husband pertaining to the payment of the mahr , the dowry given to the wife that can also be used for purpose of a divorce. The agreement may also pertain to what happens if the husband or wife converts to a different faith after marriage. If either party obtains a divorce post-marriage, the agreement may provide a set schedule of how much time each party has with their children under certain circumstances. To be enforceable, the agreement must follow the rules and regulations established by Shari’ah in regard to making sure the dowry is reasonable, that the wife is aware of her rights, that both parties have discussed the agreement together and that the document is permissible under both parties’ respective laws.
Are Islamic Prenuptial Agreements Legally Valid?
The legal standing of an Islamic prenup presents a conundrum for couples. In the UK and most other Western jurisdictions Islamic agreements are not categorically enforced, yet a court may recognize a contract entered into provided it is sensible and honest (see White v White (1999)). In the UK, the principle of freedom of contract affords parties the ability to enter into an agreement that they consider to be accepted by both parties. Islamic or otherwise, it has been submitted that where both parties agree to certain conditions, and are aware that there are also legal implications attached to the agreement, that agreement should be upheld unless it clearly offends the public interest. The main problem with Islamic prenuptial agreements, however, can lie in the fact that there is no clear legal ‘black and white’ wording to use or follow and therefore, it is impossible to categorically say that a certain agreement will be recognised or not. However, as a result, it is arguably easier for a UAE court to assess and give effect to an agreement where the wording is clearly identified. The enforceability of Islamic prenups is also directly related to the choice of law clause, almost always seen in an Islamic prenup which will ultimately prevail over the laws of the country in which the agreement is enforced. In an ideal world, all marital agreements would be recognised in all countries; however, this is not the case. In the UAE, Islamic prenuptial agreements are treated as verbal contracts. As previously mentioned, the multiple aspects of the UAE judicial system mean that the enforceability of an Islamic prenuptial contract may differ between, but is largely dependent upon the judge and the interpretation he/she uses when pronouncing judgment. The practice of enforcing Islamic agreements is not clearly established in practice so there is a risk of ambiguity and, ultimately, non-enforcement by the court. While there is no actual law prohibiting the formation and enforcement of Islamic prenuptial agreements, it still inevitably invites the question as to the future enforceability of such a contract. While the UAE should allow freedom of contract, the worries surrounding the enforceability of it could prove to be far greater than the agreement itself.
The Major Elements of an Islamic Prenuptial Agreement
When couples decide to have an Islamic prenuptial agreement, there are several key components that they will typically include that are in accordance with Sharia law. Of course, the specific components will depend on the couple’s preferences, culture and interpretation of Sharia law.
One thing that is typically included in an Islamic prenuptial agreement is the Mahr (or dower). This traditional dowry is often given from the groom to the bride when a couple marries in accordance with Sharia law. However, it’s up to the couple to determine whether or not to include this in their Islamic prenuptial agreement and to what extent. For instance, the following might be included:
• Mahr is specifically connected to the death of the husband. In Sharia law, a wife is entitled to her maut (death) portion of dower when the husband dies.
• If the husband dies within six months of their marriage, the wife may be entitled to 100 percent of the agreed-upon Mahr.
• If the husband dies within six to twelve months of the marriage, the wife is entitled to 75 percent of the agreed-upon Mahr.
• If the husband dies within one to two years of marriage, the wife is entitled to 50 percent of the agreed-upon Mahr.
• If the husband dies within 2-8 years of marriage, the wife is entitled to 25 percent of the agreed-upon Mahr.
• If the husband dies more than eight years after the marriage, the wife is entitled to 10 percent of the agreed-upon Mahr.
In addition to the Mahr, an Islamic prenuptial agreement will typically address Escheat, eliminating any assets that might be considered Escheat by Sharia law. Escheat is property that is forfeited to the state or federal government.
Additionally, an Islamic prenuptial agreement frequently addresses inheritance rights. It will often specify how the property is to be divided among surviving family members in accordance with Sharia law and may be a little more specific than a traditional pre-marital agreement in this regard.
The Advantages of an Islamic Prenuptial Agreement
An Islamic prenuptial agreement is one way to prevent disputes and meet the Islamic requirements of financial transparency in business matters. An Islamic prenup can help protect the rights of both marriage partners and provide legal certainty for property ownership. In Islam, it is a must for both the husband and wife to disclose their assets and liabilities before the marriage. This disclosure should occur prior to the marriage contract being signed and can be recorded in an Islamic prenuptial agreement or marriage contract. Full and complete financial disclosure is mandatory. An Islamic prenuptial agreement has the power to facilitate pre-marital discussions and foster a better understanding between both partners prior to the marriage. Once a mutually acceptable agreement is prepared and signed, it serves as a reference that will help reduce the likelihood of disputes after the marriage contract is signed. It is one way to avoid ambiguity in cases of dispute.
Common Myths about Islamic Prenuptial Agreements
Myth: All Muslim couples need a prenuptial agreement.
Fact: It is not mandatory for all Muslim couples to have a prenuptial agreement before marriage. However, couples, or at least one partner, must be knowledgeable of their right to the contract that assures both of them of their rights in the event of divorce. Failing to protect yourself leaves you at a disadvantage, and may not result in an equitable distribution of property or maintenance provisions.
Myth: If I don’t ask for a prenup, I won’t be perceived as greedy.
Fact: Regardless of the perception of the population at large, it is important to protect yourself legally. As noted above, a prenuptial agreement protects your rights and interests in the event of divorce . The law protects those who protect themselves, and without a prenuptial agreement, you could potentially lose all you worked hard for prior to or during your marriage.
Myth: Prenuptial agreements are only for the wealthy.
Fact: While a prenuptial agreement can safeguard wealth from before and during marriage, it can also protect a spouse who is regularly employed and who has savings. A prenuptial agreement is intended to protect each party, regardless of the amount of wealth he or she has. In fact, where spouses are of comparable income and net worth, the prenuptial agreement can help spouses with similar levels of financial wealth to have equally burdensome maintenance payments, thus providing a more equitable result.
How to Draft an Islamic Prenuptial Agreement
To ensure the enforceability of an Islamic prenuptial agreement, spouses must exercise caution in drafting such agreements to ensure that the agreement will not be held to be against public policy or otherwise unenforceable. An Islamic prenuptial agreement should be drafted in accordance with the Islamic creed and should ensure that the spouses’ rights and obligations under Islamic law are fully protected and guaranteed. To achieve this, both spouses should be fully advised by legal counsel who is knowledgeable in Islamic laws applicable in their jurisdiction. Negotiation between the parties will assist in the drafting and ensure that established Islamic principles are properly applied in the document. There are a number of important considerations to keep in mind in drafting an Islamic prenuptial agreement. First, the agreement should be in writing and signed by the parties. Oral agreements are subject to interpretation by the court and may be found to be ambiguous and unenforceable. Second, the agreement should be administered by a Muslim arbitrator. It is essential that a Muslim arbitrator be appointed to carry out the agreement in its spirit and intent. Third, it is essential that the agreement be properly registered. Some jurisdictions, such as the Kingdom of Saudi Arabia, require that the agreement be registered with the Family Court. It is also recommended that the agreement be registered in . In such cases, both parties should be accorded the right to receive the certified copy of the marriage contract. Other steps can be taken to increase the likelihood that an Islamic prenuptial agreement will be enforceable.
Islamic Prenuptial Agreements in Practice
Consider the case of Aisha and Imran. Both successful professionals in their early 30s, they retained a lawyer each to draft an Islamic prenuptial agreement. They agreed in this contract that if the marriage ended, Imran would provide Aisha with a transcript of her educational credentials, as she had put her career on hold to be with him overseas. Both of their families approved of the contract and noted how modern and practical it was.
Then, 3 years into their marriage, Imran decided he no longer wanted to continue living in Canada. He wanted to move back to his native country. Aisha was offered a job in another country that involved more travel, satisfying her desire to continue working. In the Islamic prenuptial agreement, they had specifically addressed the matter of their respective careers:
"In the event that either party must relocate for the purposes of employment, the other party must do the utmost to support that relocation, both financially and through other means, including adjusting their own work schedule."
So, Aisha moved to her new country, and Imran moved to his, and they agreed on a work schedule. Both were able to live with their current lifestyle because they had each negotiated their own success and growth in the agreement.
In another example, Sarah and Amir had a set financial goal. During their marriage, they were able to put 15% of their combined income into a mutual fund. They had structured their agreement around the timetables of raising a family , so they set out a schedule for growth and revenue-sharing for the fund until the age of 18 of their last child before a split may occur.
As the age of their first child approached 18, they both started looking ahead to a divorce and how the funds would be handled. According to their prenuptial agreement, the revenues from the mutual fund from all prior years would be divided evenly for the first 18 years. Yet, for the next five years, the revenues would be allocated to whichever party stays in the family home. Neither party could touch the principal. After the fifth year, the fund and its revenues would be divided equally, and Sarah and Amir could still not touch the principal.
When the couple contacted their lawyers, neither party had touched the principal. With the assistance of their divorce lawyers, they were able to divide all the proceeds except the principal after only one meeting. The prenuptial agreement had worked perfectly and had saved both parties money on legal fees.
While these case studies are hypothetical, the process and outcome are very possible. The ironic truth is that the longer a marriage lasts, the higher the likelihood that parties will have a hard time deciding how marital property, joint bank accounts, pensions, and mortality benefits should be split, if at all. It’s much better to decide when both parties are rational and content.