Marital Property Agreement (Jewel for a Muslim couple)
The marital property agreement gives total authority and control to married Muslim couples. It's not only for those who are married younger but, more importantly, for those aged and married, remarrying, or about to marry who have children from previous marriages. A Prenuptial and Postnuptial Property agreement is a powerful contract that will remove all worries and hassles regarding assets, previous marriages, and many marital issues.
In the past, the wealth concern was not predominant, and the time when trust was a factor, but due to economic challenges, the family issues became more and more aggressive, and disputes ends up in court after some period of marriage. You would hardly find a family without issues, whether minor or major.
To get the most out of it without compromising faith, the Marital property agreement for Muslims must be drafted with utmost care not to contradict the Sharia principles under Islamic tenets, and meeting the legal objective is a must at the same time.
If you have one or more marriages that took place in the past and have children, asset management becomes critical, which poses many challenges due to the existence of children from previous marriages. Since your family history and if you plan to marry again as a surviving spouse or divorcee, you get into another world of challenge, and romance can become a nightmare after a few days of marriage.
When we are born, we do not think much about death; similarly, when we get married, we do not think much about challenges. However, issues do happen and end up in chaos in the absence of upfront paperwork. You would not know this agreement's full capability and power until you read below.
1. Definitions
There are many names used across the globe, but the most common are Premarital or Postmarital Property agreement, Prenuptial or Postnuptial agreement.
2. Countries
The agreement is created in the countries where the common and community property law is practiced and some of the countries that include but are not limited to USA (all states except Louisiana), Canada (all provinces except Quebec), Australia, New Zealand, United Kingdom, China, Argentina, Austria, Estonia, Belgium, Brazil, Denmark, Finland, Greece, Hungary, Indonesia, Korea, Luxembourg, Netherlands, Portugal, Russia, Singapore, South Africa, Spain, Switzerland, Taiwan, Thailand, Turkmenistan, Turkey, and others.
3. Laws of property
There are two main systems of property law: common law and community property law. The common law dictates not just the property ownership for a married couple but many areas of civil. The history goes back to the 17th and 18th century colonial period since the middle ages. Common law is a body of unwritten laws based on legal precedents established by the courts. In common law states, a spouse has the opportunity to dictate the ownership differently premarital, postmarital, and at the time of divorce. So, in a common law state, each spouse can keep their earnings and anything they acquire separately unless they indicate some intent to share the ownership with their spouse. In community property systems, however, the marriage is treated similarly to a business entity. Each spouse’s income during the marriage belongs to the community. Likewise, any property acquired during the marriage, with some exceptions, is considered community property. So, those countries have community property law that supersedes any law when you do not waive the rights by creating this agreement. According to community property law, spouses' assets are divided 50-50, irrespective of the case. Common property law, on the other hand, gives financial freedom to manage marital property separately. It allows flexibility in how a couple wishes to keep their assets, whether separately or jointly.
4. Covers
The scope of a separate property agreement is very large and includes the matters inside and outside of marriage life. Other than offspring, it may include not just House or Land but anything owned by a couple jointly or separately. Following is the summary of things that can be included in the agreement.
Marital, Premarital, and Postmarital assets.
Separated and Jointly owned assets.
Personal and Business assets.
Debts and Liabilities include mortgages, loans, credits, etc.
Capital properties include houses, lands, farms, recreational properties, etc.
Movable and Immovable Properties.
Cash on hand, money in checking and savings financial accounts.
All investments, including retirement.
Non-titled assets, including furniture, belongings, jewelry, etc.
Intellectual properties include websites, books, trademarks, patents, etc.
5. Sooner than later
After getting married, things may become more complicated, especially in negotiating terms regarding your wealth and support for children from previous marriages. The best time to start a conversation and have the plan laid out is before marriage. Couples are more receptive and open to discussion until they know each other, and that's the right time to discuss it all so that it does not bite back. Before entering the next phase of life, every adult should create this marital contract to live the rest of their lives peacefully. The urgency of creating this agreement comes due to the following reasons.
There is no guarantee of how long a person live.
People can change their minds. So, what is written that can speak on your behalf?
Often, marriage occurs in a hurry and without time to get to know each other. Documenting what we think is best rather than leaving it open for discussion and disputes.
Tragic life events such as accidents, pandemics, and disasters can take a different track quickly.
6. Status matter
A couple marrying may not have a similar status in wealth. If both couples are wealthy, it becomes more important to negotiate terms before marriage regarding wealth allocations and ownership. In a situation with a huge difference between couples, one is wealthy, but the other is not. Whatever the scenario you brainstorm, having a Marital Property agreement gives you peace of mind for the rest of your life. Following are the scenarios where you can create an agreement. All these scenarios can be difficult to deal with in the absence of agreement.
Both couples are getting married.
Both couples are newly married without any previous marriage history.
Both Husband and Wife had marriages and children in the past before they got married.
The Husband had marriages and children in the past and got married to a Wife.
The Wife had marriages and children in the past and got married to a Husband.
The husband is a very wealthy person compared to his Wife.
The Wife is a very wealthy person compared to his Husband.
The Husband and Wife are both equal in wealth.
7. Scalable to maurity
Under the Islamic regime, marriages are part of achieving family sanctity and peace. The Husband and Wife are both obliged to follow a certain character during the entire marriage life. One of the recommended ways is to please the couple through each other by giving away gifts. Since the Husband is traditionally a financial provider, he has the opportunity to share gifts over time. As married life becomes more mature, both should consider sharing assets and exchanging gifts to make life more enjoyable and meaningful in both material and spiritual senses. Do not consider a Marriage Property contract a one-time work but modify, improve, and scale as you align with moral values and religious principles. We provide flexibility so that the agreement can be scalable based on your needs.
8. Revocable and flexible
Since the agreement will be revocable, it can be modified anytime if there is disagreement. But first thing first, you need to have something in place. Dealing with and managing premarital affairs and work can be frustrating, especially when you have one or more marriages that took place and left with children. Creating an agreement can reduce the burden and future disputes that may arise, and some examples are below.
In the absence of agreement, both couples decided to share the assets they own. After some time of marriage, disagreement emerges. Due to the lack of paperwork, they go to court to resolve the issue. If they had an agreement created, they could resolve the issue without going to court.
A couple decided to marry without discussing the history of marriages and children. Later, one of the spouses found that he married a person with many marriages and children. The issues ended up in court with distress on both ends. If they had an agreement in writing, they could have some accountabilities on both ends so that the suffering spouse could get justice.
A couple created the Marital property agreement using online FREE templates in a rush and missed many important things that should have been included. Later on, one of the spouses started blackmailing by using those flawed clauses in the agreement, and it ended up in court with full disappointment on both ends.
A couple decided to marry without creating a Marriage Property agreement, and they agreed verbally that they would create the agreement after some time of marriage. It was missed until they disagreed, and things did not go well. Due to this reason, we strongly suggest creating a Prenuptial Property agreement compared to a Postnuptial agreement.
A couple decided to marry and created a Prenuptial agreement to check it off as a thing to do before marriage without putting thoughts in place. They relied on what was provided by an attorney without customizing based on their needs. They missed many things in the agreement, including the provisions for pre and post-marital children, disability conditions, and more. Later on, one of the spouses got disabled, and the other spouse left him due to disability. So, the agreement they had fell apart.
A couple decided to marry, and a wife brought children from a previous marriage. Initially, the husband was not concerned, but later on, he got busy in life and could not handle these children. Now he decides to return back these children, but he cannot because his wife could not agree, and it has become a norm to look after them. Without a written contract, the husband could not do anything and had to live with the situation for life. This hassle could have been avoided in seconds if the Husband had a disclaimer in his commitment before marriage about children.
9. Structure
To give you an overview of the structure of this document, it includes the following sections. Besides this agreement, a detailed instruction guide is included to help you complete it.
Revocation
Laws and Severability
Terminology
Husband's marital declarations
Wife's marital declarations
Pre-marital children
Marital agreement terms
Husband's List of Premarital Assets and Debts
Wife's List of Premarital Assets and Debts
Husband and Wife's List of Marital and Postmarital Assets
Husband's consent and signing
Wife's consent and signing
Witness signing
Notary Public Certificate
10. Requirements
Following is the wish list of requirements, but specific requirements may differ from one country or jurisdiction (i.e., state, province, or Territory) to another.
Must be in Writing
Created voluntarily and without force or inducement.
Child custody and support (if applicable).
Disclosure of Assets, Debts, and Liabilities.
Agreement to treat and manage premarital and marital assets.
Provisions for children from previous marriages.
It must not contradict the country's public policy.
Must meet at one location (Couple, Witnesses, and Notary Public).
Must be Signed, Witnessed (at least witnesses are required), and Notarized.
Marriage certificate annexed to the agreement (If required under the legislations).
Registered (if required under country or jurisdictional law).
11. More to think on estate planning
The Prenuptial and Postnuptial Property agreement cannot be used to transfer estates after death, and many people mistakenly believe that. However, we must ensure it pairs with the Wills and Trusts created by the couple to remove any obstructions. This agreement helps you separate assets, debts, and liabilities between couples. However, dealing with estates and inheritance distribution of these separated assets must occur outside this agreement, using Last Wills and Trusts.
12. Advantages
There are several benefits to drawing this marital agreement.
Both parties will be binding and bound to follow.
Both parties are protected in their Property rights.
Children are protected.
Way path forward in case of disability.
There is no room for fraud and undue treatment when drafted properly.
Reduce stress and debate during marital life.
Reduce the paperwork and hassles in case of the dissolution of marriage occurs.
Tax relief opportunities.
Property management becomes simple.
Estate planning makes it easy.
Legally and Religiously compliant.
Prevent future costly litigation issues on Property due to disagreements.
13. Choosing wassiyyah
It's your wealth and loved ones. Wealth, children, and a new spouse can all be emotional, and things can get out of hand easily if there is no documented agreement properly. Wassiyyah provides country and jurisdiction-specific Marital property agreements tailored to the Islamic faith, so we take all your worries out of the marital equation. Wassiyyah will ensure that all legal and Shariah regime requirements are met. It takes a few minutes to an hour to have your agreement ready with Wassiyyah. We made it all easy and simple.
Islamic estate planning is important
Do not leave aside estate planning when you plan to marry or are already married. Please read “How Does Martial Property fit within Islamic estate planning?” to follow a clear strategy.
Faqs
Is the Marital Property Agreement required by law?
It's a voluntary agreement but serves many purposes, especially when your country or state enforces community Property law.
Is the Marital Property Agreement enforceable?
Yes, If it is free from ambiguity and does not contradict public policy, but in some cases, court may hold and follow country or state laws in one or more terms as part of the agreement when there is a concern about unfair or dishonest deals in the agreement.
How does it differ from the Marital Settlement Agreement?
The settlement agreement comes last, right before the official divorce takes place. Marital Property agreement comes prior (i.e., Prenuptial) or anytime after marriage (i.e., Postnuptial). Marital Property agreement becomes void and unenforceable after office dissolution of marriage.
How does it differ from a Marriage contract?
The marriage contract is issued by a religious authority (i.e., Imam, Islamic Scholar, Shaikh), a valid contract for recognizing the marriage. However, when it comes to enforceability, it can differ, especially when the marriage is not registered legally or does not have a marriage license from the judge. In the absence of a state marriage license, for couples with just the imam’s solemnization, some countries will recognize the marriage, while others declare it void. The scope of the Marriage contract is limited compared to the Prenuptial Property agreement. However, the marriage contract and license are the first requirements before you draw the Premarital Property agreement. It is strongly recommended that couples draw up prenuptial agreements in addition to signing an Islamic marriage contract to ensure that their rights and intent are upheld in court in the event of divorce.
Can a Marriage Property agreement be used in place of Islamic Wills or Trust?
The intent of creating this agreement is to organize the Premarital and Postmarital assets, provisions for children or issues from previous marriages, and spousal support upon divorce or disability. Islamic Wills and/or trusts, on the other hand, are created to organize assets so that estates are distributed following your wishes after death. Trust or Waqf can be used to manage assets while alive and distribution after death.
Can a Marital Property agreement be beneficial during the divorce process?
It depends on how a comprehensive agreement is created. But in general, it helps to finalize divorce much faster than in the lack of agreement because firstly, the couples has already written and agreed on many things that they wished, and secondly, it reduces more than 80% of the time of debate and discussion to happen during the divorce process. Thirdly, a well-written and transparent agreement can reduce the amount of court involvement and hassle.
Do you offer Prenuptial and Postnuptial Property agreements?
Yes, Wassiyyah offers comprehensive agreements for certain countries where the laws are favorable and a legal framework is available. Some countries are mentioned in "#2. COUNTRIES" above. If you cannot find the countries for which you would like to create an agreement, please leave the FEEDBACK HERE and we will help you to the best of our ability.
