by Nusrat Siddique

Discussions about finances and what would happen in the event of separation before marriage are rarely seen as romantic. Yet planning ahead can be one of the most responsible and considered steps a couple can take. For Muslim couples marrying in England and Wales, when carefully aligned, a “civil” prenuptial agreement and a “religious” Nikah contract can work together to help them enter marriage with confidence and security. 

So what is a prenuptial agreement? 

A prenuptial agreement (often referred to as “prenup”) is an agreement entered into before marriage that sets out how a couple’s finances should be dealt with if the relationship later breaks down. Prenups frequently make headlines following high profile celebrity divorces, but they are by no means only for the famous or ultra wealthy. They can be particularly important where one or both parties are entering marriage with:

• Significant inherited wealth

• Family businesses or business interests

• Property portfolios

• Trust assets

Is a prenup binding?

Historically, prenups in England and Wales were seen as void for public policy reasons; they were considered contrary to the sanctity of marriage, on the basis that they anticipated divorce before the marriage had even begun. However, that position has changed significantly as the legal and societal focus has shifted towards autonomy. 

Whilst it remains the case that prenups are not strictly legally binding in England and Wales (meaning they cannot entirely remove the court’s power to decide how finances should be divided on divorce) following the landmark Supreme Court decision in Radmacher v Granatino in 2010, the family courts will generally uphold a prenups or it will  carry significant weight when the court is determining financial outcomes on divorce where: 

• It was freely entered into by both parties;

• The agreement is fair; and

• Each party had a full appreciation of its implications, including full financial disclosure and independent legal advice.

A common misconception amongst Muslim couples is that a Nikah ceremony conducted in England and Wales is a legally recognised marriage, or that it offers similar protection to what is often referred to as a “common law marriage”.

What is a Nikah contract?

A Nikah is the Islamic marriage contract. 

In Islam, marriage is a contractual relationship entered into with offer and acceptance, witnesses, and agreed terms including the mahr. 

A common misconception amongst Muslim couples is that a Nikah ceremony conducted in England and Wales is a legally recognised marriage, or that it offers similar protection to what is often referred to as a “common law marriage”. This is not correct. English law does not recognise “common law marriage” and the Nikah terms and conditions (except for the mahr payment which can be enforced under civil law) cannot be legally enforced in the family courts. This means that, in the event of separation, individuals may be treated as cohabitants rather than spouses, with far fewer financial rights and protections. This can come as a shock, particularly for those who believed they had entered into a fully recognised marriage.

To ensure full protection is available to Muslim couples in England and Wales, a separate civil marriage ceremony is essential in addition to the Nikah. 

Nikah contract and prenups: How can they be used together? 

To understand how best Muslim couples can protect themselves when entering into marriage in England and Wales, it is important to distinguish between the role of a Nikah contract and that of a civil prenup. Although both documents may address issues arising from marriage and potential separation, they serve different purposes and operate within different legal frameworks.

The Nikah contract is often mistakenly treated as a document dealing only with mahr. While mahr is a fundamental requirement, Sharia law permits a far broader scope. The Nikah contract can record any conditions agreed between the parties, provided they do not depart from Sharia principles. This allows Muslims couples greater autonomy in shaping the religious framework of their marriage. For example, a Nikah may include provisions such as:   

• Granting the wife the right to pronounce divorce (talaq e tafweez)

• A non polygamy clause 

These terms reflect religious commitments and expectations. However, it is important to recognise that many of these provisions are unlikely to be directly enforceable under English law, even though they may be highly significant within a religious context. 

A prenup is therefore the appropriate place to record civil and financial arrangements in a way that the English courts can recognise and give weight to. It can address matters such as:

• How assets will be treated during the marriage

• How finances should be divided in the event of a divorce

• Expectations surrounding property, savings, business interests or inheritance.

For Muslim couples, the most effective and holistic approach is to therefore use both documents alongside each other:

• The Nikah contract can be used to reflect religious obligations, values and marital expectations that are important from a faith perspective, even if they are not enforceable in English law;

• The prenup can be used to address legal and financial issues in a structured way that English courts can consider if the marriage later breaks down. 

For those who choose to proceed with a Nikah alone, a carefully drafted cohabitation agreement by a solicitor can still provide important safeguards.

Adopting a dual approach through preparation of both a Nikah contract and a prenuptial agreement enables Muslim couples to respect their faith while safeguarding their legal position under English law. When carefully prepared, this combined framework provides clarity and certainty and can help avoid the stress, time and expense of contested financial proceedings should the marriage come to an end.

For those who choose to proceed with a Nikah alone, a carefully drafted cohabitation agreement by a solicitor can still provide important safeguards. Although it does not create a legally recognised marriage, a cohabitation agreement can clearly set out the parties’ intentions regarding financial arrangements during the course of the relationship and in the event in the event of a relationship breakdown.

Nusrat Siddique is an Associate Solicitor at Birketts. Nusrat specialises in helping Muslim clients understand how their religious and civil law options work alongside each other, particularly around finances and arrangements for children when relationships break down. She can advise on entering into a marriage contact (Nikah) or prenuptial agreement, deciding the mahr, understanding the Islamic divorce process, or dealing with international divorce issues. Contact Nusrat at nusrat-siddique@birketts.co.uk