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In Muslim law the agreements that are contingent on divorce can be entered into as valid contracts at the time of marriage. The pre nuptial contracts are included in the protocol that precedes the marriage which is mandatory in Islamic law and is known as Nikah. The pre nuptial contract forms part of the agreement that sets out the conditions of marriage, asset division and even residence or contact with any children in the event of separation. The Muslim countries have framed the law on marriage to comply with this requirement which allows for a process to come into effect when a marriage is dissolved. In Pakistan the Muslim Family Law Ordinance 1961, cl 17 reads: 'Special conditions, if any in the marriage contract'. This is part of Nikahnama that is built into this framework which places restrictions on the unilateral right of the husband to renounce the marriage. The setting of limits on the ancillary relief arrangements makes it necessary to examine the distribution of mahr which is the payment the husband makes to the wife prior to the marriage becoming effective.
By Zia Akhtar, Barrister, Gray's Inn
The full version of this article appears in the March 2013 issue of International Family Law.
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