Tim Elliott
Welcome to Lawgical the U.A.E’s first and still the only regular legal podcast. My name is Tim Elliott. And as always, our expert is the managing partner of the Dubai based legal firm HPL, Yamalova & Plewka here in Dubai. It’s Ludmila Yamalova. Good to see you.
Ludmila Yamalova
Good to be here with you Tim, as always.
Tim Elliott
Now, this episode of Lawgical is everything you need to know about the new laws in the U.A.E regarding pre-nuptial agreements. Now, first of all, Ludmila, pre-nuptial agreements are available in the Emirates, of course. It’s fine to get one done.
Ludmila Yamalova
Indeed, and they’re not only available, but they are, believe it or not, fairly common. They’re also available for both Muslims and non-Muslims. So they’re not discriminating. And obviously, this is as long as the prenuptial agreements do not contradict the U.A.E laws and regulations. But for example, even under Sharia law, prenuptial agreements are actually expressly provided for and constitute part of the contract.
So, yes, prenuptial agreements in the U.A.E are very common and perhaps even highly advisable for a lot of couples given the often encountered complexities of many couples’ lives here.
Tim Elliott
Let’s go back a little bit and just outline for anybody who’s heard the term but isn’t sure how prenups work, what they are. Let me ask the basic question, what is a prenuptial agreement anyway?
Ludmila Yamalova
That’s a good starting point. A prenuptial agreement is just an agreement. It’s like any other agreement. And in this case, it’s an agreement between parties, a couple, setting out the terms of their relationship. So in terms of what they can include in this contract, as long as they don’t contradict the U.A.E laws or regulations, they have full freedom of contract. So, and in most cases, the purpose of these prenuptial agreements are designed to protect
parties’ respective interests and assets which they’re bringing into the marriage. So each party may have their own circumstances and interests which they wish to explicitly exclude for example or limit before they enter a new marriage. This often applies for couples in particular who have been married previously and have children and or some kind of obligations from their previous marriages.
They may also address the specifically certain jurisdictional matters such as pre-selecting a choice of law or a choice of forum in advance of the enforcement of this agreement. So perhaps to kind of summarize it or explain it in a more specific context.
who would benefit from prenuptial agreement. It’s couples who have had, for whom it’s not their first rodeo in particular. A couple that is perhaps young couples and that were both parties more or less on equal footing. Let’s say a couple that is just starting out, both working and they are about to get married and then build a family for them.
maybe it’s a little less relevant to have an agreement in place because everything they’ll be creating from that point on they’ll be creating together and because they’re more or less of equal capacities and standing on equal footing, chances are there’s not going to be much of a disparity in terms of their ability to later on either provide for their children or provide for their lifestyle or even ownership of their respective assets. So most likely whatever it is that they
they earn and they buy at that point on will be in both of their names and therefore will ultimately be shared equally. So for a couple like that, perhaps prenuptial agreement is not important or is less relevant. But for couples for whom, for example, let’s say a man is coming into the marriage for the second, third time and has children from previous relationships and maybe has fairly significant wealth.
from before and may want to in advance protect the interest of his previous children, right, or his children from previous marriages. So that, and protect and also outline for all parties’ sake in terms of, in the event this marriage, remember we’re talking about third marriage perhaps or even fourth marriage. So if this marriage does not work out for some reason that all parties’ expectations
and interests provided for without having to undergo lengthy civil and commercial disputes. So I mean, those are some examples. And by the way, in our practice, we deal with a lot of prenuptial agreements. And so we draft and we have drafted just in this year alone, I guess, not 2024 yet, but last year. In 2023, a lot of prenuptial agreements. And
They usually, these are the couples usually who would like to have a prenuptial agreement because one or the other one of them comes in with either significant assets and they just want to in advance protect those assets or ring fence those assets. Or for example, they have children from other marriages and they also want to make specific provisions in the agreement ahead of time.
Also, sometimes couples want in advance, especially if one or the other person makes compromises, if you will, or sacrifices for the benefit of the other person, they want perhaps some kind of assurance that their interests will be protected. So let’s say if the woman decides not to abandon her career because she wants to be able to support her husband or she wants to leave or she is…
basically has to leave her previous country and therefore previous job and she’s moving across the world to be with her soon-to-be husband, then it’s something that she may want to specifically provide for that because she is giving up her ability to earn an income. So maybe somehow she wants in advance to have some kind of an understanding of how her rights are going to be protected going into this marriage.
Tim Elliott
Join me through the laws that provide for pre-nuptial agreements, Ludmila in particular, those for foreigners.
Ludmila Yamalova
Yes, so for non-Muslim residents of the U.A.E, prenuptial agreements are specifically provided for in at least two sets of laws. At a federal level, it is the federal decree law number 41 of 2022 on civil personal status for non-Muslims and in particular article 6.2 of that law. So that’s at the federal law and federal level.
And also there is an Emirate specific law and that’s the law of the Emirate of Abu Dhabi. And that’s law number 14 of 2021 on personal status for non-Muslims. So it’s in fact it’s the Abu Dhabi law that was introduced first and then the federal law followed later but in many ways almost a replica if you will of the Abu Dhabi law.
So it took as its base the Abu Dhabi law and codified it and provided it to, made it available to the rest of the U.A.E at a federal level. So for purposes of Abu Dhabi, this is notable to highlight is that just because it’s Abu Dhabi does not mean it’s limited to only Abu Dhabi residents or those who have some sort of connection or links to Abu Dhabi.
Any couple who wishes to either get married or have a prenuptial agreement registered in Abu Dhabi can do so. And it does not have to have any, they don’t have to have connections to Abu Dhabi. Not only that, even non-U.A.E residents can avail themselves of this service. And this, by the way, is done through the Abu Dhabi sort of court, which is usually referred to as the Abu Dhabi Judicial Department or ADJD.
So this particular tool of getting married and in particular registering prenuptial agreements was perhaps first introduced and led by ADJD and therefore that’s kind of the sample base, if you will, that is the biggest or most advanced at this point or most developed just by virtue of this particular forum existing longer.
and this particular law being advertised quite extensively. And therefore, many couples since then have availed themselves of this service. And we have seen it actually work at play. And it’s very effective and very efficient. So in addition to the U.A.E’s own laws, non-Muslim residents can also enforce prenuptial agreements, which can be registered in foreign countries as part of their marriage registration there.
So in other words, if you’re a couple coming in from abroad and you were married abroad and you already had a prenuptial agreement, these prenuptial agreements now can also be enforced in the U.A.E and they could be enforced under as per the federal law number 41 of 2022, because ultimately, what are we talking about? We’re talking about enforcement of an agreement and the agreement is an agreement. So where it was registered, where it was signed becomes less relevant if, you know, as long as there is.
evidence that was in agreement and the terms of the agreement are clear and they do not contradict in general the U.A.E’s own laws and culture. So while it’s advisable to have, if you’re getting married here, to register your prenuptial agreement here because with the local authorities it’s not at all necessary. So if you do have prenuptial agreement from elsewhere they are now even more readily, if you will, enforceable.
than before, and that’s by virtue of this new federal law, which is on civil personal status, which ultimately allows couples who were married in a civil ceremony and therefore have a civil marriage, if you will, then rely on these prenuptial agreements in the U.A.E without having to worry that, let’s say, in the event of a dispute, they will be subject to the laws that are based on Sharia or Sharia principles.
as was the case before this particular law was introduced
Tim Elliott
Ludmila you mentioned that this is something that at your firm you look at regularly and you detail agreements regularly. I’m interested in the scope of prenuptial agreements, what can be included, what is often included.
Ludmila Yamalova
So the scope of the prenuptial agreement, it can be as detailed or as limited as you want it to be. So as expressive or expressed or as basic as the parties wish for it to be. So some prenuptial agreements, perhaps this was many people’s kind of expectation that they only address the terms and conditions of the party’s separation.
But it doesn’t have to be that only. The prenuptial agreements can also set out terms and conditions of parties’ relationship during marriage. So remember, what we’re talking about is a prenuptial agreement. This is an agreement before you enter marriage. So therefore, logically, sequence-wise, as you’re doing this before you enter marriage, you first have marriage, and you hope that marriage lasts forever. And that’s all you have. You’ll never really necessarily have to enforce this agreement.
or it may end, but there’s still two stages to that relationship after that. So there’s a marriage and then there is potentially after the end of marriage. And so therefore, this prenuptial agreement can address both aspects of that sort of life continuity or life chapters. So it doesn’t need to just specifically focus on what happens once the couple decides to go their separate ways
their assets, how they divide those assets, and how they support each other and the financial compensation and obviously children and how the children are going to be provided for and the parents’ rights and obligations for the children. But it doesn’t just have to be that. It can actually be a lot more focused and on, okay, so what about, perhaps I would even argue,
that it’s even more important to include, in those cases, for those couples who do wish for a prenuptial agreement to be signed before they decide to formalize their relationship is to also detail the terms and conditions of their marriage. So for example, if you already, again, that in particular applies to couples who believe that it’s important for them to have a prenuptial agreement. That’s because…
already somebody’s trying to ring fence something, right? And there’s nothing necessarily wrong with it. But if that’s the case, it means that perhaps one or the other party are coming in from different footing and maybe unequal footing. So let’s say a woman coming in, the man wants to ring fence and protect his future earnings, right? In the event of the separation.
And that’s perhaps happens in cases in particular where the man’s income is a lot higher than potential a woman. And I’m using these examples, I don’t wanna be a stereotype, but these are kind of sort of based on a number of cases that we have recently dealt with. And that tends to be kind of the more classical example. And so in that case, then the woman may want to include in this prenuptial agreement,
their terms and conditions and her expectations of what she expects from the marriage, since it’s her future husband will be the one who will be providing for her, who will be earning. So, but what does it mean for the woman? Should she, who’s gonna be paying, for example, for living expenses? Would he be the one paying? And is there some sort of expectation that she will also be contributing?
Or does she have a specific expectation that she wants for her own sake, especially since, let’s say, if she wants to move into the country and leave her home country to move here to be with her soon-to-be husband, she may want to have some sort of additional assurances of security in terms of, well, I want to make sure that I will always have a home to live, because what if something doesn’t work out? What if you leave? Where will I go?
Tim Elliott
Mm-hmm.
Ludmila Yamalova
the house we’re gonna be living in, is it gonna be in your name, is it going to be in our name, and am I going to have my own bank account, will I have my own money, access to money, or am I going to have to rely on you, my husband, for every expense and for every payment, and will have to ask you every time that I want, I want, or I want to buy myself something. So.
This may not be relevant for all, but certainly if you think about who are the circumstances, perhaps, of the parties who find prenuptial agreements in particular necessary or relevant for them are such where for the same reasons, I would argue it’s equally important to address what they expect of each other during marriage. So I’ll give you some other examples.
at least the contracts we have drafted is you have couples that are coming from different, not just countries, but nationalities and different religions and different cultures. And so they may want ahead of time to decide, okay, we want our children to have a nationality of which one of those countries and we want our children to be raised in which one of the cultures or religions.
And then, and where do we want them to ultimately live? And what if, because your parents, of the grandparents would be living in different countries, what if the mother wants to take the children to visit her parents in Korea in the summer, and the husband wants to take the children to visit his parents in France in the summer, for example. So these are some of the things that parties, especially that come from very different places in life, and different…
places in the world, they may want in advance to kind of decide, okay, we want our kids because we do come from different languages, different cultures, different religions. Let us decide ahead of time, which is our particular school. We want our children to be going to do want them to be raised on a certain kind of religion. And this may all sound very detailed and unnecessary. But in many couples’ cases, when you actually lay this out for them.
They find it very helpful and important to kind of think through, so to make sure that, hey, this almost serves as another test of their commitment to be with one another, because if they start all of a sudden already fighting, oh, I don’t want my child to, let’s say, be speaking Chinese. I only want my child to speak French, for example. So it’s an interesting kind of exercise to go through with couples.
And ultimately, I think if it’s done correctly, it’s highly valuable and hugely beneficial.
Tim Elliott It’s almost unlimited in terms of the scope, but when are prenuptial agreements particularly relevant to a particular couple and when should you consider arranging a prenuptial agreement?
Ludmila Yamalova Yes, well, in short, it’s when the party’s circumstances are uneven, such as in cases of previous marriages, disparity of income, and significant wealth, also couples of mixed nationalities and different religions. And in general, prenuptial agreements can be a beneficial tool for regulating conditions of a marriage, such as specific child custody. So who will have child custody in the event something happens?
financial support and it’s financial support both for the children and for the spouse and could also be even for the family and grandparents extended family and then the alimony and then there is the alimony for children for the spouse and then protection or division of assets and so on so forth, so there is And it could be as granular as you want it to be
But ultimately, it’s the parties who believe that because of how different maybe their backgrounds are and their family dynamic and their financial circumstances, they want in order to ensure that they’re on the same page, they want to make sure that they’re on the same page. And this is a way for them to think through some of these.
issues that are more important to them. Remember, because it’s an agreement, it’s a flexible instrument. It doesn’t have to be, there isn’t like a template that you need to stick by. So, and for different couples, different matters matter. So for some children are not relevant, for example, because I’ll tell you recently, we had to actually represent a number of these cases, but recently we were doing a pre-nup agreement for somebody.
who clearly they did not wanna have children. And that was actually an important provision of or condition of their marriage is that they did not want to have children. So, and in the event there was a child, it was actually going to be a bit of a deal breaker, but they wanted to provide for this potential change of hearts in the agreement advance because it was such an important element to their marriage. You’d think this.
kind of that you wouldn’t really necessarily think of that example as an example that in sort of more classical circumstances under which a prenuptial agreement would be considered, but there it is and this is real and it’s such an important element. So in that case, let’s say children are not important, but addressing that specific provision that you don’t want to have children is important, but other aspects are more important. So perhaps more financial aspects. And
And then, you know, while in other cases where you have, where both parties are coming in from previous marriages, with children from previous relationships, they want to be able to clearly set out in the interest of all of their children, right? In the interest of all the parties concerned, kind of ahead of time, listen, these are things that I’m going to do for my children from the previous marriage. These are things that we need to commit to be doing together for our respective children from previous marriages and for our children in this marriage.
and similarly protection-wise in terms of financial compensation and such. I mean, you can see it can be extremely complex. And because the U.A.E is such an interesting demographic, and you and I obviously haven’t been in this country for so long, I can attest to it firsthand, there are so many colorful people with colorful lives that result in very, very colorful marriages. It’s…
actually is a very healthy exercise to go through and kind of document your understanding of you know what you sort of want your life to be. And by the way remember this the prenuptial agreement does not have to necessarily be about oh I’m going to keep my money mine so hoarding my assets I don’t want to share them with you. It could just be you could even be between people who don’t really have very much coming into the marriage or they’re happy to share whatever it is they have but they just want to have more specific.
provisions about how they want that marriage to be addressed specifically. So for example, as I said, early an example, they don’t want to have children. Let’s include them in the agreement. It’s a roadmap. It’s a recipe for them to perhaps try to ensure that their marriage will be length longer and healthier.
Tim Elliott
Let’s talk about drafting that roadmap, that recipe, if you like. How does that work? Do parties do it together? Is it an individual thing?
Ludmila Yamalova
So it depends on the circumstances. The general rule is that both parties should be represented by council. And that’s in the event that later on, they, one or the other party wants to enforce the agreement. And often, or in the past, there’s always kind of been an argument, one party trying to challenge the agreement on the basis that let’s say she or he, usually it’s the she, was not adequately represented. She did not understand what she was signing. She was sort of.
pressured into signing or she wasn’t sophisticated enough to understand what she was signing. So in the past, there have been many prenuptial agreements that were contested or challenged on that basis. And that’s why the general rule is that both parties should seek legal advice and counsel and have somebody hold them by the hand and kind of walk them through clause by clause.
of this p-n-o-p-t-u agreement to ensure that they actually understand what they’re agreeing to and what they’re signing on to. So that’s perhaps like the most important rule. That being said, it doesn’t mean that the parties have to have separate council. Because remember, what we’re talking about is, you know, it’s a couple that’s about to get married and they are happy. They don’t necessarily consider themselves being on the opposite sides. So it’s not like…
it may actually be even unnatural for them to go and hire a separate counsel. It’s almost like, okay, we’re gonna go sort of already going into this marriage and we’re already battling things out. So for some, it may not be natural to seek independent counsel. And so therefore, they may actually approach the same counsel and be sort of be a client as a couple of the particular lawyer.
So in other words, the lawyer will work with them, with the couple directly, and lay out, and draft this roadmap and this recipe with both parties present. And sort of, I guess, in this case, the lawyer is somewhat like a mediator, if you will. And that, by the way, is the role that we have played most often.
And it has been extremely successful because, again, the parties are happy, they’re on the same page, and they much prefer to be in the same room with the same lawyer and kind of, and discuss these various issues in real time and making sure that they kind of understand exactly what they’re going in with and what they’re signing. So, but perhaps in more formal settings, this is parties would prefer to have, especially those who…
who have a lot more perhaps that they want to protect, if you will, they may feel more comfortable having their own individual lawyers share their own drafts. And this can be very complicated as well, or can get a lot more complicated. So let’s say the woman hires her own lawyer with her own draft, the man hires his own lawyer with his own draft, and then the drafts have to somehow get merged.
So it can get a lot more complex. It doesn’t have to. I think it’s unnecessary. So in general terms, there should be one draft that’s one that the other party leads in with and then the other side amends as relevant.
Tim Elliott
So you have your prenuptial agreement in place. Everybody’s happy, council have worked out everything to everybody’s agreement. How do you and where do you register a prenup?
Ludmila Yamalova
So for the time being, as far as the U.A.E is concerned, the best place and perhaps, I don’t wanna say it’s the only place, but the best place that has been tested and is reliable is the ADJD, which is the Abu Dhabi Judicial Department. And this is the, that’s the forum that was the first forum for civil marriages in the U.A.E. And it’s the first place that introduced the option of civil marriages. And so this is where you would now
as per the federal law, civil marriages are at least theoretically available in other Emirates, but since Abu Dhabi was the first one to lead the way, it still is the most streamlined, the most efficient, and the most predictable in terms of what to do. So we would recommend ADJD. And in terms of the process, it’s quite simple. So you do the prenuptial agreement as.
part of your marriage, your civil marriage. So obviously you would have to agree to the agreement beforehand and you’d sign it. The parties would sign it and then you need to legally translate it into Arabic because it still would be registered, presented, and registered ultimately to the local courts. And in the local courts, Arabic is still the official language. So whatever it is you do should be legally translated. Now that’s not to say that the agreement should be in both languages sort of side by side. You can.
your primary version would be your English version, but for the purposes of having it registered and presented to the authorities, so the ADJD would want to legally translate as well. So once you have that, then you apply for your civil marriage, and as part of your civil marriage, when you submit the application on the ADJD website, it’s all very much digitalized in that way, very efficient. So you submit your application for marriage on the ADJD website.
and you submit your prenuptial agreement as part of that application, the marriage application. So, and then, by the way, ADJD also has its own template of prenuptial agreement. So, there’s already an option for those who do not want to pay lawyers or don’t want to kind of over complicate things, but do feel that having some document is better than nothing. So, ADJD does provide a standard prenuptial agreement template, which is drafted already both in Arabic and English.
and at a fee of 950 dirhams, so fairly accessible. But for purposes of, you know, we were talking about Abu Dhabi, Abu Dhabi, ADJD, maybe a lot of people thinking, well, how does it apply to me? I don’t live in ADJD, I’m not a resident, nor do I have any assets. Now that is inconsequential, to be able to avail yourself of the Abu Dhabi forum for your civil marriage and the prenuptial agreement and.
Also, the laws, all you need to do is just basically register your marriage at the ADJD. Once you’ve registered your marriage and your prenuptial agreement, you can use that prenuptial agreement and obviously the marriage certificate everywhere in the U.A.E. So if you wanted later on to enforce this agreement, you are not at all in any way bound to having to do it in ADJD. You can do it in Dubai and any other emirate where you live. So because it’s still ultimately, it’s a document, a court document of the U.A.E courts.
And as long as you’re enforcing it in the U.A.E courts, it doesn’t really matter which particular court you are enforcing it at. So any resident of the U.A.E and non-residents, as I said earlier, can get married in Abu Dhabi and this ADJD as a civil marriage and have their prenuptial agreements registered there.
Tim Elliott
One final question, Ludmila, and I hope this is not too simple or too broad in scope, but it’s what makes a good, maybe better than that, what makes an effective prenuptial agreement?
Ludmila Yamalova
I would say number one, and this is our general rule, is that they should be drafted in a very simple language, understandable and comprehensible by both parties. So it should not be overly legalized and overly complicated to understand, because at the end of the day, it needs to serve as a roadmap for the parties to rely on. So it should be easily understood and read in a way that is simple and clear.
That’s one. Two, it should be detailed and specific. I would suggest that if you’re going to go through the undertaking of actually having something drafted, it should be specific and it should be detailed. So you should think through, okay, what are the things that matter to you or you think will matter to you going into this marriage? And the more specific and the more detailed it is, the more you will have addressed all these possible issues.
that you might have in the future and have discussed and addressed them ahead of time. So this way you can ensure that both parties are on the same page and they have a roadmap that they’re able to rely on in the future in the event there is issues come up along the way. That’s two. Three, they should, I would suggest that most prenuptial agreements should encompass both the terms and conditions during the marriage as well as
in the event of the divorce. So I would say it’s important if you’re going to take the time to draft this tool that you also address some of the more relevant important issues that might come up during your marriage. Again, to have a roadmap, to have a recipe of your marriage to help ensure that there are no misunderstandings or unmet expectations, but equally so, it should also address consequences of a potential separation or divorce.
And generally speaking, this is kind of our own style that wherever possible, I’d say, include tables and summaries, because a lot of the time, these kinds of instruments, and we see it over and over again with regards to wills and prenuptial agreements, they’re so verbose and so legalese in many ways. It’s actually difficult for parties to really kind of understand. So what are we doing? What do we agree on?
So having a summary or a table or some kind of a graphic representation. So here’s the high level sketch of what we agreed on, I think is highly beneficial and highly effective.
Tim Elliott
That’s Lawgical prenups or prenuptial agreements here in the United Arab Emirates. As ever, thank you for listening or watching or both. Thanks to our legal expert, managing partner here at Yamalova & Plewka, Ludmila Yamalova. Thank you, Ludmila. Good to talk to you again.
Ludmila Yamalova
Thank you, Tim. Always a pleasure.
Tim Elliott
You can find us at LYlaw, social media, Facebook, Instagram, TikTok, LinkedIn. Our podcasts are free at lylawyers.com. And if you’d like a legal question answered in an episode of Lawgical or you’d like to talk to a qualified U.A.E experience legal professional, go to lylawyers.com and click contact.
