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Pre-Nuptial Agreements

Pre-Nuptial Agreements

05 Jan 2022
Pre-Nuptial Agreements

What is a prenuptial agreement ?  It is an agreement which is signed by the couple prior to their marriage.  
 
Is there really a need for one  ? Potentially, yes as the agreement would record how finances and other matters are to be resolved in the event of separation or divorce.
 
Here is something for you to consider - When people live in different jurisdictions or  are from different jurisdictions and decide to marry, it is imperative that when contemplating whether to enter into a prenuptial agreement, they seek specific advice in respect of the validity and implication of any such agreements in their home jurisdiction.  By way of illustration, for a British Ex Pat who is residing in Dubai and who will be marrying a future partner who is from another Country, advice should be sought on the potential impact of the prenuptial agreement in England and the proposed spouse’s home country, as well as in the UAE.  
 
Although the English Courts may not recognise prenuptial agreements as automatically binding or enforceable under English divorce law, they have a broad discretion as to how to order the division of finances and property on the dissolution of a marriage.  The Courts can take a prenuptial agreement into account as one of the factors affecting its decision on the division of the parties’ assets /wealth.  In the United Arab Emirates, there are no specific laws regarding prenuptial agreements.  Such an agreement is a contract between two parties. It is therefore, important to take great care when drafting prenuptial agreements because if they have not been properly thought out or executed, it can lead to costly litigation. In particular, care should also be taken to ensure that the wording of any contract drafted in UAE with a possibility of it being relied on in the UAE Courts, should not offend Sharia Law principles. There is also the potential advantage of a prenuptial agreement determining which jurisdiction and which law should apply in the event of separation and or divorce. 
 
In ensuring that the Court in any appropriate jurisdiction considers the agreement to be fair, 
  • The parties will need to confirm that the prenuptial agreement is made at least 28 days prior to the date of the wedding; 
  • They should set out their financial circumstances in full; 
  • They should both obtain, or be given the opportunity to seek independent legal advice on the agreement and its effects and 
  • They should sign the agreement before witnesses.  
  • The agreement should also reflect that the parties have not been placed under any pressure to sign the document.
As with all contracts/agreements, there will always be advantages and disadvantages but through a collaborative approach, we can advise you on the various advantages such as :
  • In having a prenuptial agreement, the parties can avoid protracted arguments in the case of separation or divorce.
  • The parties can agree the financial arrangements in advance i.e split of assets / who is to pay for what.
  • The parties can protect their premarital assets such as any real estate or business interests.
  • In a situation where one of the parties has significant debts, the prenuptial agreement can protect the other from having to assume the obligations of the debt once married.
There are also various disadvantages which may need to be considered :
  • Starting a relationship with a contract that sets out the particulars of what will happen upon a future divorce may instil a sense of lack of trust in the parties.   
  • Initially, the agreement may require one of the parties to give up their right to inherit from the other’s estate when he or she dies, although this can always be changed during the marriage by recording the intentions in a supplementary agreement.  
  • Following acceptance of a proposal to marry, a party may agree to terms that are not in their best interest because they are ‘too in love’ to be concerned with finances and what the future may hold.
If you are thinking of marriage in the near future and wish to seek clarity on whether a prenuptial agreement may be suitable for you, we can advise and guide you through the process. 
 
For further information or advice in relation to prenuptial agreements or any family matters, please contact our family law department.

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