Prenuptial Blessings

If ever in doubt, a visit to the nearest family court will make you believe that a marriage does not always last forever. This worldwide phenomenon of increasing marital disputes has rendered the signature of prenuptial agreements by future spouses a common practice in a number of Western countries, regulating different practical and financial aspects of the marriage to prevent conflicts or to eliminate battles in case of divorce. A prenuptial agreement is a signed and notarized contract that spells out how a couple will handle mainly the financial aspects but also practical aspects of marriage.

 

Certainly unromantic, it might be even argued that it makes a love relationship seem like a deal or put in question the life-time commitment to one another. However, the answer is simple: the agreement just states what the couple has already agreed upon. In case, they haven’t done it yet, perhaps it is too soon to get committed.

 

The question might be raised whether an equivalent to a prenuptial agreement exists under the Egyptian legislation, especially the Islamic law which governs the personal status for Muslims and inter-confessional marriages in Egypt. In fact, the prenuptial agreement in the Islamic law is nothing but the marriage itself. Thus, the Islamic Law defines marriage as a contractual agreement describing the rights, duties and obligations of prospective spouses during and upon termination of marriage through death or divorce. It is neither a sacrament nor a holy bound, even if some ma’zuns (Cleric who is certified to wed a couple) tend to describe it as such, certainly influenced by extra-Islamic discourse, perhaps even by a romantic American movie.

 

This conception of marriage as a contract based on Islamic Law has been adopted by the Egyptian personal status law that has been codified for the first time in 1929 with a law of procedure codified earlier in 1897, but has been regularly and substantially amended ever since. Consequently, at the moment the marriage is concluded the couple can address a number of issues related to the scope of spousal support, the daily life or the marital dissolution. Through integrated clauses a wife can even stipulate in advance conditions such as the number of visits of the in-laws (classical reason for marital disputes in Egypt), her right to work or above all the right of her husband to remarry, which would only allow the wife an automatic divorce if she wishes but not restrict the husband’s rights to remarry. Equally the husband can include similar clauses. Any researcher of the classical Islamic doctrine would be surprised by the works dedicated to marital clauses, and will be even more astonished by the frequent use of this practice by Arab women in the Middle Ages to ensure the implementation of some agreed principles.

 

But although the legal system recognizes the individual freedom of the couple to decide for them selves how to arrange their future life, this principle of contractualism may not contravene with a legal obligation, violate public policy or restrict a legal right.

It is important to underline that the marital contract in the Islamic Law contains imperatively an obligation for the husband to pledge support and an obligation for the wife to pledge obedience recognizing the husband as the head of the household. Consequently, a clause inserted by the husband liberating him completely from this obligation would be null and void, but equally a wife’s clause rejecting the obligation of obedience will find the same sort, as both are intrinsically linked. However, the contract may largely regulate these two obligations, for instance allowing the wife to work or travel abroad without requiring the husband’s approval. In addition, the contract cannot violate the regime of child custody in case of divorce, which would be considered as violating public policy. The contract may also specify creatively the bride’s dowry (mahr), that is not necessarily a financial sum. Islamic scholars in the Middle Ages even admitted in their writings the possibility for the husband to teach his future wife a foreign language as an acceptable form of bride’s dowry. However, the contract cannot exclude the wife’s right of receiving any form dowry.

 

Another possible clause is her right to obtain divorce immediately by her unilateral will through "El Esma" (right to self divorce) or the protection clause. This option at the origin of a number of Egyptian black-and-white comedies does not strip the husband from his unrestricted right to immediately divorce his wife by his unilateral will as well like it has been wrongly portrayed by Ismail Yassin or Adel Imam. The protection clause is just a delegation by the husband given to his wife, allowing her to use his own right whenever she wishes. But if the legal definition might seem to undermine the value of this clause, it remains in reality a clause granting both parties equal capacity to put a term to the marriage at any moment by the will of any one of them, which is a sign of liberalism of the Islamic Law unmatched by other legal systems in general.

 

It is also important to note that in the silence of the contract the general rules of law in Egypt as well as in other European countries recognize the common local customs as applicable. In the Egyptian context the most famous example is the expectation for the future husband to provide the apartment and major appliances and for the wife to provide the furniture of the apartment. The couple may legally agree otherwise, but if they omit to agree, the customs become applicable.

 

A fruitful advice will always be for the future couple to discuss these arrangements early in their relationship and not to get committed without a clear vision on at least major practical and financial aspects of their union. It is true that these arrangements might leave room for bargaining and families of the bride and groom in Egypt are generally very anxious to safeguard the interests of their side and seize every opportunity to influence or interfere in the arrangement. In a real love relationship the contract is between the couple and is advised to be also negotiated between the couple without external pressures concerning the content or even the moment of commitment. And finally it would never harm to document these arrangements in the marital contract.