Published: Aug. 12, 2023
Last Updated: July 10, 2024
UAE has made very evident legal reforms in the laws related to divorce and child custody, the newly amended laws have similarities to the western laws. The reforms are the much-needed because the UAE has the highest divorce rate in the region.
The initial step is to enroll the case by one or the other party in the Family Guidance Section at the respective judicial department. A court-selected negotiator will attempt to accommodate the separation of parties. It’s a must process to try reconciliation between the separating parties. Parties are permitted to raise their interests relating to the marriage without their lawyers. The divorcing parties should draft a settlement in light of the parties’ interests and sign it before the conciliator. After considering the willingness of both parties to get a divorce the conciliator will issue them, a referral later, after that the parties will be able to present their case before the court and get their divorce case concluded. The latter can be used for the next 3 months from the date on which it was issued. Once in court, the specifics of the separation case fall at the court’s tact and each party needs to give proof to help their cases against each other as well as in their defense.
Divorce is permitted under Islamic law, if the judge is fully convinced that the couple cannot live together, he can process the case and end the union. Sharia courts of UAE accept divorce appeals from Muslim men of different nationalities and non-Muslim women who are married to a Muslim man can also file a suit for divorce in the said court. To file a divorce case the person should be sound-minded and prudent to make his decisions.
Nationals of other states residing in the UAE can file for a divorce in their native country or UAE. The parties can apply their country’s law by submitting an appeal to the court for the said purpose.
Article 1 of the Federal Law No 28 of 2005 for Personal Affairs states: The provisions of this Law shall apply to citizens of the United Arab Emirates State unless non-Muslims among them have special provisions applicable to their community or confession. They shall equally apply to non-citizens unless one of them asks for the application of his law.
Two conditions must be filled for the application of the non-citizens’ law to their case i.e. legally attested copies of all the relevant parts of the foreign law, translated into Arabic, and the relevant law must be easily interpretable so the court can easily apply them. If any aspect of the divorce case is not covered under the personal law of the parties, the law of UAE will be applicable.
The last 2 years have seen major reforms in family laws to keep pace will all the nationalities living in UAE. In November 2021 new things like civil marriage, no-fault divorce and joint child custody, etc. were introduced.
Currently, the newly introduced secular law is enforced in Abu Dhabi, it includes,
The new secular law is only applicable to non-Muslim foreigners living in Abu-Dhabi, non-Muslim emirate and Muslim foreigners living in Abu-Dhabi cannot benefit from this new set of secular laws. However, if the couple faces conflict on which law to follow, secular or sharia, then sharia will be applicable.
Federal law no 28 of 2005 for personal affairs, declares the mother of the child as the custodian and the father the guardian. Under the declared roles both the parents have different sets of responsibilities. Custodian is responsible for the day-to-day care of the child thus the role is granted to the mother and the right of guardianship is granted to the father. Father is responsible for providing for the child’s financial needs such as shelter, food, medical expenses, education, and other requirements.
Parents do not share equal responsibilities of a child in UAE thus their roles and responsibilities are divided separately under custody and guardianship. The top priority of the courts’ is the best interest of the child (unless anything contradictory appears) the court prefers to keep the child’s physical custody with the mother, and the father contributes to the upbringing of his child as a guardian.
Federal law no 28 of 2005 for personal affairs, also guides regarding the child’s age while deciding the custody. When the son reaches the age of 11 and the daughter age 13 the father has the right to claim the custody of his child.
Under articles 134 and 144 it’s important for the custodian to be, rational, major, and honest, he/she must be able to take care of the child, free from any transmittable disease, and must possess a good character. If the mother herself is the custodian she must share the same religion as her child and not remarry (she can but only if it’s in the best interest of the child). If the father is acting as a custodian, he is also bound to share the same religion as his child and, he must have a suitable woman living in his home to care for the child (such as a female relative).
The mother her the right to claim the extension of her child’s custody, until the son completes his education and the daughter gets married but she has to prove that she was good with her children, she can do that by providing school performance reports, good medical health history, etc. the father can also claim the custody of his son if he thinks living with his mother is making him softer in nature and the father desires to see him as a more responsible person. The claims will finally be decided by the court and the decision will be based on the best interest of the child.
It is also very important to remember that no party can flee with the child without the prior approval of the other party. If anyone of them does so it will be the amount of child abduction. And the party involved can face legal consequences. It is always very wise to take legal advice from lawyers in such matters.
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