Pre-nuptial agreements and protection of marital rights

Marriage is a promise and a legal relationship that creates rights and obligations between a couple. While months are spent on wedding planning, little consideration is given into planning the legal and financial obligations of the partners. As part of planning a happy conjugal life, a couple can sign a pre-nuptial agreement ('pre-nup' in short), where they may agree on specific terms beyond the mandatory requirements set by their respective religion/s. These terms may include maintenance arrangements, residence, work or education rights for the wife, restrictions on second marriage, delegation of divorce, property arrangements, or other mutually agreed upon obligations. Yet many couples shy away from finding the base conditions and making a pre-nup before marriage out of embarrassment, fear of upsetting family dynamics, or the mistaken belief that pre-nup is tantamount to pre-planning for divorce.

In Bangladesh, this hesitation is even more prominent. Couples, especially the young ones, feel uncomfortable discussing money, property, maintenance, or responsibilities before marriage. Families often discourage conversations on such serious matters out of fear that they will harm the relationship before it begins, identifying them as pessimistic thoughts. But the truth is, this silence breeds the very conflicts they fear. Absence of clarity in such matters often creates serious problems and even leads to divorce in the worst-case scenario. Disputes over maintenance, deferred dower, or residence may escalate into hostile litigation, often accompanied by harassment or false claims. By contrast, clearly drafted, lawful, and registered terms provide both spouses with certainty and help mitigate opportunistic claims.

Marriage under Islamic law is not merely a religious commitment but also a contract recognised by the statutory and Shariah law. A muslim couple, hesitant to sign a pre-nup, can take advantage of the kabin-nama itself, which functions as evidence of the marriage contract, recording core obligations such as the dower or mahr. The kabin-nama is not just a religious formality; it is a legal document recognised under the Muslim Marriages and Divorces (Registration) Act 1974 and the corresponding Rules made in 2009, and enforceable in the family courts under the Family Courts Act 2023. Uniquely, it also provides a column for special conditions mentioned in Clause 17, where spouses may record the special conditions that are lawful and unambiguous. It is this clause which may have functions similar to a pre-nuptial agreement.

Courts and legal commentators in Bangladesh have repeatedly recognised that a clear set of conditions written in the kabin-nama carries contractual weight, and the family courts have repeatedly relied on kabin-nama entries (including Clause 17) when deciding on contentious issues.

Across the subcontinent, courts have upheld similar contractual promises. The Jammu & Kashmir High Court in Mohd. Khan v Mst. Shahmali (1972) enforced a pre-marital condition promising a sum be paid to the wife if the husband leaves her father's house. The judgment emphasised on the validity of such pre-nuptial agreements as long as they do not violate Muslim law or public policy. In Pakistan, the 2024 Supreme Court decision in Muhammad Yousaf v. Huma Saeed reaffirmed that terms written in the nikahnama are not merely cermonial rather binding, and that the 'special conditions' column must be interpreted in favour of the wife where ambiguity exists.

South Asian courts thus do accept pre-marital agreements and marriage-contract conditions as legally significant. Couples are therefore encouraged to discuss and record their intentions in Clause 17 regarding deferred and prompt dower, maintenance during and after marriage, residence arrangements, rights to work or study, remarriage by the husband, and delegation or limitation of divorce rights. Drafting should be clear and specific, avoiding vague phrasing, and the kabin-nama must be properly signed, witnessed, and registered to strengthen enforceability.

Unfortunately, this significant tool is available only to Muslim marriages only. In cases of Hindu, Christian or any other religious marriages in Bangladesh, there is no direct statutory provision equivalent to Clause 17 that records special pre-marital conditions.

Nevertheless, couples are not without options. A thoughtfully drafted pre-nuptial agreement under the statutory Contract Law 1872 may serve people of all religions, including the couples getting married under the Special Marriage Act 1872, ensuring all benefit from having their expectations recorded. With a pre-nup, they can prevent the marriage from becoming a source of unnecessary conflict and hardship in case it ends in divorce or separation. It encourages transparency before marriage, allows both parties to enter the union with dignity and knowledge, and ensures that neither is left vulnerable to emotional or financial coercion in the worst scenario. Finally, it ensures that even if love fades, respect persists.

The writer is Advocate at the Dhaka Judge Court.