What Are Prenups in Islam
Contrary to common perception, marital power is not vested in husbands alone in Islamic law. However, for the sake of time, effort and material comfort, Muslim couples can negotiate and conclude a prenuptial agreement before marriage. This typically involves the parties bargaining over the financial obligations and rights to property in the event of divorce. The notion of arranging the practical aspects of later life before marriage is more commonly known as a prenuptial agreement or prenup in the West. Prenups are generally associated with Western lawmakers defining and outlining a legal contract between a husband and a wife. In this respect, it is not immediately obvious how a prenuptial agreement is negotiated and interpreted within Islamic law . The reason for this is that a contract of marriage already exists and is supported by a legal framework. Islamic law therefore encourages an extension of the marital contract to stipulate further rights and obligations before marriage should the parties choose this path. A general principle is that contracting parties should be on equal footing and must not include any provisions that contravene their religious obligations or irrefutable laws. This is not to say that all terms and conditions in a prenup are always enforceable in a court of law. If these terms and conditions are not in compliance with the general principles of fairness, good conscience or morals, or if they overlook societal custom, this would render such clauses non-enforceable.
Islam Approach on Prenuptial Agreements
Islamic law, or Sharia, has detailed rules that address contemporary matters such as prenuptial agreements. Although there is no specific mention of premarital contracts during the period of the Prophet Mohammed, Islam recognizes the premarital agreement as a legal instrument with effects in law. A marriage contract must be signed by both parties before the marriage ceremony. These contracts can be drafted according to the specific desires of the parties and not all monetary arrangements need to satisfy Islamic law. The parties are free to cancel the contract at any point prior to consummation of the marriage.
The valid Islamic marriage contract settles the following issues:
If a prenuptial agreement is absent, the husband must support his wife and the wife must obey her husband. The Islamic definition of support consists of: the husband holding a job, ensuring food, clothing and shelter and providing medical care for the wife and children. While wives must obey their husbands, they are not obligated to live with them if they are being mistreated. If no agreement settles issues of support, a husband is generally not required to support a wayward wife since he cannot force her to stay in his home.
What Constitutes an Islamic Prenup
In Islamic law, the main contract terms that your attorney and the other lawyer will negotiate are essentially the same as those in Western contract law. The relevant contractual terms include financial obligations, property division, and at times, child custody and other religious considerations. The Marriage Agreement (aka the Marriage Contract) is a written agreement between the husband and wife that sets out the terms of the marriage relationship. It is an important document for Muslim communities because it defines the rules both parties must abide by during the marriage as well as during the event of a divorce. The Marriage Contract is negotiated and signed before the civil Marriage Certificate is signed and the couple is married. It is written in the language that is most understandable to both parties and is translated into English when necessary.
The Marriage Contract includes the following essential components: The Marriage Contract is a couple’s first joint contract. It is the foundation on which the Muslim couple is about to start their life together, so it must be entered into fairly and honestly and executed in good faith. It must provide a meaningful layer of protection in the case one spouse does not fulfill his or her obligations.
Common Myths
Despite what some think, a prenuptial agreement does not contravene Islamic law but puts in writing, and perhaps even for the first time in some people’s lives, what is required under those laws. Crucially enough, because they are contracts, dispute clauses created by Muslim prenuptial agreements are enforceable under Shari’ah law. Furthermore, some actually believe that prenuptial agreements will play out as they normally would, but are somehow lessened when it comes to these types of marriages. The fact of the matter is that when since 2009, the Family Law Act has stated that non-inheritance family law provisions apply to Muslims, prenuptial agreements cannot be contravened. Even more, the Ontario Law Reform Commission also concluded that all succession provisions of the Succession Law Reform Act apply to Muslims, meaning that these agreements will not be lessened but rather include even more provisions than the average contract.
Pros and Cons
An important advantage of a Muslim couple entering into a prenuptial agreement is the certainty it can provide regarding their future rights and obligations. It allows them to enter into their marriage, knowing that they have protected their interests and that their rights and duties are clearly set-out in a written contract. This is very important considering the increased number of religious divorces across the western world.
Entering into a prenuptial agreement can also assist in marital harmony and in avoiding unnecessary conflicts in the event of a divorce . In respect of the obligations of a husband under Islamic law, the parties can contract with respect to payment of the prompt payment of the mahr, spousal maintenance, counts on the husband’s failure to pay maintenance, grounds for divorce, and counselling before divorce.
An important limitation of the prenuptial agreement is that a spouse cannot contract out of the rights and obligations of marriage recognised in Malaysia by the Law Reform Act 1976. For example, marriage and divorce under the Act is based on statutory principles that currently do not allow parties to contract out of certain rights such as child maintenance.
The Process and Enforcement
The drafting and enforcement of prenuptial agreements, or literally the marriage contract in Islamic law, differs widely internationally. The validity of marriage contracts in countries with a significant Muslim population that are not governed by sharia law will be governed by the provisions of national or local law. In jurisdictions where national legislation overrides sharia law, for instance, France, a detailed marriage contract will still be subject to the rules governing matrimonial property in the Civil Code. A marriage contract in Egypt will, on the other hand, fall within the jurisdiction of the courts and the judges will decide the circumstances in which a marriage contract is binding.
Rights and obligations arising out of sharia law are thus best served by an express written agreement between the spouses. In countries without a specific local regime, a judge may enforce even the most extravagant provisions of an agreement if they do not violate public policy. However, another country that has a specific local regime may not recognize such contractual arrangement.
Most countries with a significant Muslim population, such as the United Arab Emirates (UAE) and the Kingdom of Saudi Arabia (KSA) observe sharia law and have domestic legislations dealing specifically with the enforceability of marriage contracts. The relevant provisions of the Sharia Family Law (UAE Federal Law Number 28 of 2005) and the family law of the KSA (Royal Decrees 71 of 1389 A.H/1970 C.E and 25 of 1425 AH/2005 C.E.) are examined below.
Both the UAE and KSA laws provide for a general formality that the marriage contract must be on a public document or written in a public ledger by a witness. The UAE and KSA laws do not provide any specific form that must be adhered to. Therefore, marriage contracts may be made in a foreign language and notarized abroad. However, the enforceability of marriage contracts made in a foreign language or drafted abroad would be subject to review in the UAE and KSA by the appropriate authorities. The administrative authorities in the respective countries would assess the importance of the agreement and determine whether the matter should be referred to the court. Even if referred to a court, judges in the UAE will implement a liberal approach and will uphold an agreement despite legal formalities or failure to meet any conditions. In the KSA, the Council of Senior Scholars has declared such contracts to be valid and enforceable before local courts.
However, it is important to note that the undertaking of the wife to perform the job relevant to the pull would be a task that is nearly impossible to fulfil. The importance and qualification of the job will not usually be taken into consideration by the UAE courts and the judge would not make a decision as to whether the job and the pull of that job are appropriate for the woman.
Illustrative Cases
Consider the couple depicted in the classic international arbitration case of B v. S, in which the husband was a senior official with a Gulf State, who had emigrated to London, where he married the claimant wife. The outcry that the case drew over the imposition of the Sharia-style prenuptial agreement on women in the UK has been widely reported. What is less well known is that the husband himself sought to have the agreement enforced, rather than challenge it as having been imposed on him under Sharia law in his country of origin.
In his submission for enforcement of the agreement, he claimed to have freely entered into it, and argued that the BNormals Rule (as it now is) applied. This rule subjected parties to an Islamic marriage to Sharia law principles, allowing them to opt out of financial provision on divorce. He stated that he understood the consequences, and had considered the issue very carefully, rather than agreeing to the provision under duress. In fact, he argued, the arrangement actually made him wealthier, because an Islamic divorce would result in him having to pay his wife only her "dowry" (a nominal amount of money) rather than a 50% split of any marital assets, which the court would have ordered under English law.
The circumstances, as they appeared in the arbitration tribunal’s decisions were therefore, that whilst the husband wanted the agreement to be enforceable, the wife wanted to bring a divorce in England so that she could secure equitable treatment under English law, entitling her to half of his wealth. In the end the arbitrator allowed the appeal, and the agreement was left unenforceable.
This case study is unusual in that both the husband and the wife wanted the Islamic-style pre-nup to be enforceable. (Indeed, in the B case, the wife was found to have tricked her husband into signing the document, which had not reflected their stated intentions). Whilst British and European law does allow people to opt out of financial provision by agreement in the absence of undue influence, which the B case turned on, Islamic law doesn’t, and apparently neither did the B husband in this instance.
A further case study is that of the Slimani case, identified in the papers. The couple entered into a marriage contract, but the wife subsequently wished to renegotiate it under the new Islamic family law provisions in Algeria, which confer much more wealth on women. She argued that there had been a misunderstanding on her part of the extent of her entitlement. Although the claim to use the family courts was brought for 250,000 dinars, the Algerian court ruled that the husband must pay a full 50% of his wealth to the wife.
In addition, the situation in B v. S over the successful resettlement of Islamic pre-nups in this country, is reflected in the outcome of some recent cases, namely A v. B and A v. A. In these cases, the arguments of the parties were that the terms of the contracts were incorrect, and should be substantively departed from.
In A v. B, a wife sought a divorce, with a financial provision order. During that divorce, she raised a claim that her husband had pressured her into giving him prenup agreements, which made him the owner of all her wealth. In the end the court ruled that she should be compensated for 400,000 hawzi and 3 million for the "dowry" payment.
In A v. A, the parties owned a joint business. The couple had been married, and the marriage was dissolved after the first son was born, although the parties continued to live together. They went through the Turkish court system, and there were no arguments as to entitlement to wealth or the existence of an Islamic-style prenup. However, the judges in the Turkish court found that because the parties had agreed to settle in a different manner, it was necessary for them to compensate one another for loss of the chance to secure wealth and business income distribution, and to proceed to divide the assets in the most beneficial way, despite the agreements.
This case shows to what extent the terms of the prenup were disregarded by the Turkish courts – or how the parties’ willings were deemed to take precedence over the agreements. The court ruled that the literal interpretation of the traditional Islamic contract would create such harshness and injustice, and therefore ruled that the couple should redistribute their business income and wealth.
What is evident from these three case studies, is that the Islamic prenuptial agreement itself will not and cannot be determinative vis a vis the court: it can be taken into account, but it will not exclude the requirement that such an agreement must be fair.
Conclusion and What’s Next for Prenups in Islamic Law
In conclusion, we have established that Islamic law does not prohibit the use of prenuptial agreements or the practice of contract marriage. The Quran emphasizes the importance of marriage as a divine partnership in which the spouses are considered a single soul. It would be contradictory to oppose it through the concept of marriage as a contract. Nevertheless, the application of prenuptial agreements in Muslim communities remains a challenge as marriage is perceived as an intimate personal relationship.
Moreover , there is a lack of judicial precedents in applying prenuptial agreements to Muslim marriages. Since divorce is frowned upon and must be a last resort, the stakes are high as an agreement entered into prior to marriage cannot account for all possible outcomes.
This article is intended to open a dialogue on the use of prenuptial agreements and the practice of contract marriage in Islam. Future developments could include legal reforms to encourage the use of these agreements or to address specific concerns. Prenuptial agreements will likely become more common in Islamic cultures as they become more popular in the Western world.