Family Law - Special Conditions in the Marriage Contract

Hassan Elhais
 


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Marriage contracts usually take a standard format, however, special conditions may be added into marriage contracts. Such special conditions can provide different rights to either of the parties, but we have seen a prevalence of conditions which focus on giving the wife additional rights.

One example of these special conditions gives the wife a right to petition for a divorce on her own behalf. She is however only able to do this if the husband marries to someone else before her death. This right is a significant one for a wife.

Another recurring special condition is one that makes the wife entitled to a high amount of Mahar or what is generically referred to as dowry. This Mahar should not generally be high, however, the contract often stipulates a high amount and this can be defined in terms of a high-value cash amount or, for example, a number of gold coins. It is common nowadays to have a high level of Mahar in order to provide a good image in the community.

There are significant implications for such a condition of marriage, especially as it encourages females to get married for the sake of the Mahar, and may also give them a right to divorce soon after they receive their Mahar. A marriage contract with such a special condition which refers to Mahar enables the wife to claim the Mahar either upfront, on demand or upon divorce. This right can cause certain issues for a husband due to the fact that contractually he must pay the Mahar once demanded by the wife. This right is also an obligation which cannot easily be waived, and most certainly cannot be waived by husband himself. Instead, it can only be waived through express written consent of the wife.

The relevant law, based upon Shariah Law, is Law No. 28 of 2005 is the Personal Status Law (PSL). The relevant Articles are 49-53, which we will now look at in more detail.

Article 52 defines the time(s) at which the wife can claim and also limits her rights in certain circumstances. As described above, the Mahar can be requested upfront, at the time of the contract or after the marriage. There is the option to pay partially too, which the wife should agree to. The husband’s obligations are halved when a wife has previously been divorced.

Article 53 refers to situations where the husband refuses to pay the amount agreed to in the signed contract yet the marriage contract has already been entered into. In this case, any decisions of the court will be tipped against the husband in this case.

Article 55 gives full rights of ownership and receivership of Mahar to the wife. She can request to invoke her right as and when she decides.

Article 57 codifies this right and states that once the right is given in the contract, it must, under all circumstances, be given ‘as agreed’.

Unfortunately, UAE laws do not provide any space for lowering or reducing the Mahar and therefore the agreements are important to secure certain positions. We advise on external or subsidiary agreements at the time of marriage.

(543)

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