A prenuptial agreement (“prenup”) is an agreement made by a couple before they marry concerning the ownership of their respective assets should the marriage end in divorce. Prenuptial agreements differ from traditional Muslim marriage contracts in that the former usually only governs the allocation of assets in case of divorce, while the latter can govern a variety of issues both during the marriage and in divorce. While planning what happens in a divorce might be the last thing any soon-to-be-married couple wants to do, doing so can save heartache, time, and money if the marriage fails. It can also force the couple to consider issues that may have not been previously discussed, such as debt, inheritance, gifts, and future employment plans.

What can be included in a prenup?

There is wide latitude on what can be included in a prenuptial agreement. A couple can include provisions about debt, liabilities, alimony, assets, inheritance, retirement plans, gifts, real estate, jewelry, antiques, and even pets.

What cannot be included in a prenup?

Contract provisions having to do with children usually are not enforced by courts. This means any agreements about who gets custody in case of divorce, visitation rights, whether child support will be paid, or how much child support is paid would not be legally binding. If a couple is using their Islamic marriage contract in lieu of a prenuptial agreement, some of the provisions in the contract may not be enforceable in court, such as limitations on a wife’s right to get divorced, responsibilities of the parties during the marriage, or mahr. Readers can refer back to the Justice360 Bulletin on Marriage and Divorce in Islamic and American Law for a more detailed analysis on these kinds of provisions.

Protecting the prenup for being successfully challenged in court

For a prenuptial agreement to be valid and enforceable by a court, it must be 1) in writing 2) signed by both parties 3) accompanied by a full disclosure of assets, income, and debt of each party and 3) entered into freely and voluntarily. An absence of any of the foregoing can often make the prenup unenforceable. Although a party is not required to have an attorney when entering into a prenup, a lack of independent counsel may make it susceptible to a challenge. Each party should either get their own legal representative or include a provision in the agreement that he or she is knowingly waives the right to have counsel. Parties can also include a clause that requires the one who challenges the validity of the prenup to pay all of the other spouse’s attorneys and court fees, regardless of the outcome.

Couples who decide to do a prenuptial agreement on their own, without the help of counsel, should be aware that state laws vary regarding prenuptial agreements. Form prenup agreements available on websites may not be customized to a specific state and both spouses should do their due diligence to make sure their agreement will be enforceable in court.

The author of this article can be reached via email at Justice360@muslimcongress.org. For more information about Justice360, visit http://www.muslimcongress.org/360.

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