Lawyers Urge High-Powered Expat Women to Get Prenups

(UAE) - Lawyers in the UAE are urging working women to get a prenuptial agreement to protect their assets in case of a divorce.

As unromantic as it may sound, experts say they are seeing a trend that more women are paying alimony than ever before to their ex-spouses.

In the past decades, most divorces resulted in the man making payments to his ex-wife but times have changed.

Byron James, head of UAE’s Expatriate Law, based in the UAE, said more women are out-earning their husbands and in the absence of a prenup are being asked to provide for their men, even after divorce.

A prenuptial agreement or prenup is a legally binding written contract where a couple decides how assets or debts will be divided in case of a divorce.

Without a prenup, a husband or a wife, whoever earns more, will have to share the majority of their hard-earned cash and assets with the other.

The final decision depends on the judge who could decide that the richer party, regardless of their sex and contribution to the marriage, must continue to support their ex-husband or wife.

Mr James said he has handled several cases in the past where women found themselves legally obligated to share more than half their income with their ex-husbands.

He said he is currently representing a number of British expat women in the UAE who do not have a prenup and are being forced to share their assets through proceedings taking place in England. They are also obligated to continue to financially support their ex-husbands.

“There is an increasing number of our clients who are successful professional women, who are either employed or doing managerial jobs or run their own companies — they are financially independent in their own right and successful in their jobs," he told The National.

"They may also have been the primary carers for their children. These women have husbands who have not contributed in the same way, either financially or to the care of the children.

Supporting unemployed husbands

“In most countries around the world, a judge will also look at the needs of both parties. And they say, why shouldn't both parties have their needs met? So that would mean that the richer party would support the other person.

“If a husband cannot financially sustain himself after the divorce, without the financial support of his wife, then the wife would have to pay the husband money - that money could be for housing, a car or just for their monthly needs in what is called a periodical payments order,” he said.

He gave the example of a rich British woman in her 50s who married an unemployed man of the same age as she did not want to break old UAE laws that criminalised cohabitation.

A few years into the marriage, he remained unemployed and made no financial contributions to the marriage. After the divorce, he argued that he is unemployed and requires financial support indefinitely.

Mr James said the longer a couple stays married, the more they will have to share, sometimes even if it means sharing what they bought before the marriage.

“These women have a problem. They feel like they have worked really hard, both as mothers and in their jobs. They have contributed far more than their husband and they feel aggrieved that the husband is seeking even more money from them in separation," he said.

Rarely do people get married thinking it will end but Mr James said that for these women it would have been helpful to have a prenup.

“People get married without thinking it through a lot of the time," he said.

"Sometimes people get married in their early 20 when they have nothing in the beginning so they will think, I've got nothing that needs protecting.

"But then over the next 10 or 15 years, they work really hard and build up things whilst also raising the children."

Importance of prenup

A prenup has two key concepts: one is to characterise assets as either matrimonial or non-matrimonial, helping define what can be shared and to what extent in case of a divorce.

"This can be of huge value. It means that you won't spend as much on legal fees arguing about things if you divorce and it means that you are limiting the claims that can be brought against you. You’re also more likely to keep everything amicable," Mr James said.

“Some people think it depends on how rich you are and I think that's a mistake. So whilst people who are high net worth are more likely to have pre-/post- marital agreements, they could benefit many more people. There's no reason why anybody of any level shouldn't have a premarital agreement in place”.

More awareness needed

Legal experts say more awareness is needed around prenups.

Dr Karim El Chazli, a legal adviser at the Swiss Institute of Comparative law based in Lausanne, said there are several marital agreements, such as matrimonial property agreements, maintenance agreements, separation agreements, pre-nuptial or post-nuptial agreements, and others.

"There are different agreements that define the conditions of conclusion, time of conclusion, legal value, etc. However, not all couples are aware of the possibility of concluding such agreements as well as the different available options," he said.

"Awareness needs to be raised about this issue. As someone rightly put it, a prenup and similar agreements basically mean hoping for the best but preparing for the worst.

"By restraining a judge’s discretion, prenup gives some predictability and clarity to the spouses. A prenup can help to avoid the potential liability for the spouse’s debts.

"It also implies allocating a certain time for future spouses to discuss among themselves and know better each other’s expectations and anticipate potential problems. This discussion is as important as the prenup itself."

Shariah Law and prenups

This is a concept that does not exist in Shariah law. In Muslim marriages, the role of the man is to provide for the woman during marriage and for only three months after a divorce.

Only minor children get financial support — ongoing support for longer is reserved only for children of the marriage.

Most expensive divorce settlements

Bill and Melinda Gates: $73bn

The split of Bill and Melinda Gates, who were worth $146 billion, was one of the largest divorce settlements in history due to the sheer size of their fortune.

Court documents submitted by Ms Gates, 56, a copy of which was published by website TMZ, revealed that the couple did not have a prenup but they previously signed a separation agreement, which provided a framework on how to move forward with the divorce.

Jeff Bezos and MacKenzie Scott: $38bn

Jeff Bezos and his wife MacKenzie Scot split in 2019. Mr Bezos, the founder of Amazon, with a net worth of $197bn then, paid $38bn to settle the divorce with his wife of about 26 years.

It was widely reported they did not have a prenup.

Mel Gibson and Robyn Denise Moore: $425m

Mel Gibson divorced his wife of 31 years, Robyn Denise Moore, in 2011.

There were reports then that the couple did not have a prenuptial agreement and Mel Gibson had to give $425m in the divorce settlement.

By Shireena Al Nowais
September 5, 2022


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