Amendments by Federal Law Number 8 of 2019 towards Family Law
The Abu Dhabi Statistics Centre (ADSC) had revealed that about 30 percent of the divorces that took place in 2018 in the United Arab Emirates (UAE) was dissolved within the first year of marriage. A total of 5,467 marriage contracts were registered in 2018, indicating a 6 percent annual increase of marriages since 1979. The ADSC pointed out that the number of registered divorce cases rose to 2,025 in 2018 from 1,859 in 2017, an annual increase of 4.2 percent since 1975. Whereas 28.5 percent of marriages ended in divorce within the first 12 months, which equates to 1,558 of marriage contracts, 62.2 percent of divorces took place within the first four years of marriage.
As we progress through 2020, the government of the UAE has issued some symbolic amendments in the UAE Family law, especially towards divorce and custody cases by virtue of Federal Law Number 8 of 2019 amending Federal Law Number 28 of 2005 concerning the Personal Status Law in UAE (the "new Law").
1) The text of Article 118 was replaced by virtue of Article 1 of Federal Law Number 8 of 2019 dated 29/08/2019 dealing with divorce. It is known that each of the two spouses is entitled to request for divorce due to prejudice that is making the continuity of the friendly companionship between them impossible. Article 118 of the new Law states that if the prejudice is not established, the lawsuit shall be rejected, and if the discordance is still continuing between the spouses, then the aggrieved party may file a new lawsuit. If the Family Orientation Committee does not succeed to reconcile them, a judgment shall be issued by the judge to appoint two arbitrators from among their parents, after requesting each of the spouses to nominate his/her arbitrator from among his/her parents, or contrarily from those who have the ability and experience to reconcile. However, if one of the spouses procrastinate in nominating his/her arbitrator or abstain from attending this hearing, the judgment shall not be subject to any appeal. The arbitrator appointed by the court under Article 118(2) is under an obligation to issue an order within a period of 90 days from the date of appointment. The two arbitrators along with the parties to the litigation of the judgment appointing the arbitrators shall be notified by the court, and each of them shall be asked to take an oath to perform the assignment with equity and honesty.
2) The text of Article 120 of the new Law states that if the two arbitrators fail to reconcile the spouses, the court shall present the arbitrators' recommendations to the spouses and invite them to reconcile before issuing the judgment of separation. If the couple reconciles despite the two arbitrators' recommendation of separation, and a judgment is not issued yet therein, the court shall confirm the reconciliation.
Nevertheless, if reconciliation between the two spouses is not possible, the following scenarios can occur:
- Should the offense be entirely from the husband’s part and the wife is seeking the divorce, or both parties are claiming for separation, the arbitrators shall decide a non-retractable divorce without prejudice to the rights of the wife resulting from marriage and divorce.
- If the offense is entirely from the wife’s part, the two arbitrators shall decide to divorce them for a consideration deemed adequate by them and payable by the wife unless the husband requests to maintain the marriage. The court shall take into account the interest of the family.
- Where both parties participated in the offense, the arbitrators shall decide on their separation without consideration or with one in proportion to each one’s share in the offense.
- If the case is not clear as to who is the offender among the spouses and if the husband is the claimant, the arbitrators shall recommend dismissal of his case; but if the wife or both of them are claiming separation, the arbitrators shall decide either separation without consideration or refuse their separation, as they deem appropriate for the interest of the family and the children.
3) As per the text of Article 121 of the new Law, the two arbitrators shall submit to the judge their reasoned decision that shall include the extent to which each of the spouses offended the other. The judge shall rule according to the recommendation of the two arbitrators if they reached the same opinion; otherwise, the judge shall appoint other arbitrators, or add a third whose opinion shall prevail. The judge shall amend the recommendation of the two arbitrators where it violates the provisions of the new Law.
4) The new Law further describes circumstances under which the wife can be considered guilty pursuant to Article 71. The text of Article 71 of the new Law relates to the instances when the alimony to the wife is forfeited. These instances are,
- If she refuses to give herself to her husband or refuses to reintegrate the conjugal domicile without an excuse accepted by the Sharia.
- Should she abandon the conjugal domicile without an excuse accepted by the Sharia.
- If she forbids her husband to enter into the conjugal domicile without an excuse accepted by the Sharia.
- If she refuses to travel with her husband without an excuse accepted by the Sharia.
- If a judgment or decision is rendered by the court, restricting her freedom, in a matter to which the husband is not entitled, and the said judgment or decision is in the process of execution.
5) Article 72 has been amended stating that the following shall not be considered a transgression to the duty of obedience:
- If she goes out by virtue of Sharia or custom or as necessary, or
- If she works according to laws, regulations and customs,
and the judge shall take into account the family’s interest.
6) Unless otherwise stipulated in the contract, the spouses shall live in the conjugal home and in the event of a dispute between the spouses, the judge shall take into account the interest of the family as per Article 75.
7) Article 30 of the new Law states that the capacity to marriage is completed by reason and maturity. The age of maturity is considered as eighteen years completed unless the person concerned matures earlier in conformity with the law. A person who legally matures before reaching the age of eighteen, he/she shall not marry except in accordance with the regulations issued by a Cabinet decision upon the proposal of the Ministry of Justice. However, should the person having completed the age of eighteen request marriage but had failed to obtain the approval of his tutor, he may refer the matter to the judge. The judge shall then fix a period for the tutor and if he fails to appear, or his opposition to the marriage is not convincing, the judge shall approve the marriage.
8) The text of Article 56 of the new Law lays down the rights of the husband towards his wife, as follows:
- House supervision and preservation of its contents.
- Suckling his children from her unless there is an impediment.
- Any other rights prescribed by Sharia.