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Antenuptial agreement with accrual

Fatwaa ID: 1733

Question:
السَّلاَمُ عَلَيْكُمْ وَرَحْمَةُ اللهِ وَ بَرَكَاتُهُُ
Respected mufti May I ask, two people intending to get married

1.which marriage contract follows Sharia? Antenuptial agreement with or without the accrual ?

  1. Is it Haram to choose the option that is not in accordance with sharia?
  2. If the wife to be or husband to be doesn’t want the contract that is in accordance with sharia what should be done ?

جَزاك الله خَيراً

Answer:
In the Name of Allaah, the Most Gracious, the Most Merciful.
As-salaamu ‘alaykum wa-rahmatullaahi wa-barakaatuh.

In principle, when a couple get married, the husband’s wealth and property remain his and the wife’s wealth and property remain hers. She is not entitled to any of his wealth nor is he entitled to any of her wealth by virtue of marriage nor divorce thereafter. Likewise, any income or wealth acquired during the marriage by either of the two remain the sole property of the acquirer unless one voluntarily and willingly gifts to the other. Any claim made contrary to the above is oppressive and the claimant will be accountable for it on the Day of Judgment. He/she will be obligated to resolve it then if it is not resolved in this world.

Keeping the above in mind, the answers to your queries are as follows:

  1. The default is to choose the antenuptial agreement without accrual. This is in compliance with the principles stated above. However, should the couple wish to voluntarily agree to share their future wealth equally amongst themselves and make the other spouse owner to it, then they are at liberty to do so. This will be treated as a gifting. Hence, when doing so, they must ensure that the receiving spouse assumes constructive possession of the gifted items. If constructive possession is not assumed, then ownership will not transfer. Any item that is not transferred to the ownership of the other during the lifetime will form part of the estate upon the demise of either of the spouses.
    It should be noted however that each of the two spouses will have the right to revoke such an agreement unilaterally at any given time. They are not obligated to honor the agreement until the end.
    The details above should be understood, documented and implemented should the couple wish to go on with the voluntary accrual agreement. If not, then it would not be Shari’ah compliant.
  2. Your answer is in your question. If something is not in accordance to the Shari’ah, then it is obviously haraam.
  3. As Muslims, we surrender to the laws and injunctions of Allaah Ta’aala, irrespective of whether we like it or not. We do not give preference to our desires over the commands of Allaah Ta’aala. Our success and bliss in both lives lie in accepting and following this. Going against this will only be a means of regret and remorse in both lives. If a potential spouse is not ready to comply with the laws of Allaah Ta’aala, we cannot expect him/her to fulfill the rights of the spouse moving forward. The marriage with such a person should be reconsidered.

And Allaah Ta’aala knows best.
Mufti Muajul I. Chowdhury
Darul Iftaa New York
https://askthemufti.us/

02/26/1445 AH – 09/12/2023 CE | AML1-8308

وصل اللهم وسلم وبارك على سيدنا محمد وعلى ءاله وصحبه أجمعين


https://www.law.cornell.edu/wex/antenuptial_agreement/
An antenuptial agreement or a prenuptial agreement is an agreement made between parties before getting married, permitting them to individually retain certain assets during the marriage and after the marriage if divorce arises.

https://www.cronjelaw.com/marital-property-systems-and-the-importance-of-an-antenuptial-contract/
In the absence of an Antenuptial Contract, the parties are married in community of property which means that their estates are joined, and they share assets and liabilities.

https://www.antenuptial24.co.za/choices/knowledgebase/pro-and-cons-of-antenuptial-contracts/
Antenuptial Contract with accrual – each partner states the value of their respective assets at the beginning of a marriage. Thereafter any assets are shared 50/50. One can state that specific assets be excluded from the accrual, such an inheritance and donations etc.

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