©The New Straits Times (Used by permission)
by AISYAH SULAIMAN
PUTRAJAYA:Muslim women are encouraged to sign pre–nuptial agreements, with terms and conditions drawn up according to syarak laws, to safeguard their rights in a marriage. A familiar concept in civil marriages, a prenuptial agreement is often considered alien to Muslims.
Malaysian Syariah Lawyers president Musa Awang said the agreement was meant to protect the interests of the wife in the event the husband caused problems in the marriage. A pre–nuptial agreement, or pre–nup, is a Western practice made famous by Hollywood stars.
According to the Western concept, it is an agreement entered into between a man and a woman before they marry, and it is mostly about how they will divide their money and property if they were to divorce.
In the Muslim context, the agreement is more of a contract that can be drawn up before or during a marriage, and this will include terms and conditions that must be fulfilled by the parties during marriage, and will effect a divorce once breached.
"The pre–nup can be considered as an extension of ta'liq (a contract that is recited after the akad nikah or solemnisation of marriage) is performed, or an added contract.
"But although the ta'liq is different from the pre–nup, both are enforceable in court and is aimed at protecting the rights of the parties in the event of a breach in agreement."
He said he often advised clients, who had problems in their marriage, to draw up the agreement to settle their issues.
Both agreements, he said, would be valid after the akad was pronounced and contained terms and conditions that included maintenance for the wife, care and custody of the children, and division of property.
Syariah and civil lawyer Amir Bahari said the agreements were especially important for women as it would act as a balance of power.
"The power to divorce or to pronounce the talaq is with the husband. In this case, if anything happens, the wife will have a safety net.
"It also acts as a form of risk management and provides certainty in a relationship," said Amir, adding that pre–nuptial agreements were useful in cases where women married foreigners or held important posts.
"If the wife has a higher paying position or holds an important post, there is a likelihood the husband will abuse the privilege and fail to provide for her.
"In this case, she can ask for a divorce based on the terms and protect her rights and property."
Amir said a pre–nuptial could not include post–divorce conditions, such as maintenance of the wife once a divorce occurred.