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Family Matters-An Overview of Divorce and Child Custody in UAE

Published on : December 2014
Author(s):Mohammad Badr,Niharika Singh

In the present day and age we can all agree that there is no such thing as a typical family tableaux. Although time, culture and location have always flavoured the “traditional” concept, nowadays we can no longer use such factors to predict the identity of the protagonists sat around the dinner table in any given family home. Regardless of location or culture there is a likely prospect that a residential unit may include a step-parent, siblings of different parentage, grandparents, cousins or a group of friends simply sharing a tenancy. This change may be attributed to a variety of factors, but it is undeniable that the increase in the number of divorces worldwide plays a part. In some areas (such as Las Vegas, where one can instantaneously marry for $60 and divorce for $109) the institution of marriage has never been afforded the respect it deserves, but the fact of the matter is that regardless of culture, religion, social practice, custom and timely values, divorce is a common and accepted reality of our era.

The United Arab Emirates (UAE) is no exception, yet the nation is somewhat unusual in the sense that it houses a disproportionately large expatriate population. It therefore follows that the courts of the UAE see a large number of matters pertaining to foreign family issues. Consequently, when dealing with cases such as divorce, the courts are accustomed to hearing a plethora of beliefs, attitudes and expectations. Any person residing in a given jurisdiction will be bound by the governing law therein, and as such a thorough understanding of the UAE’s marital and family laws, procedures and consequences is necessary for anyone considering the termination of their marriage through the nation’s courts. However the UAE law also allows foreign nationals to divorce under the law of their homeland. This article is therefore designed to provide a comprehensive outline of the options available to those considering divorce, and to additionally consider various family rights with which we may be unfamiliar.

Divorce under the UAE law is primarily dealt by Federal Law Number 28 of 2005 (the Personal Status Law - PSL). Certain provisions of Federal Law No.5 of 1985 (the Civil Code) also deliberate the issue. Originally under Shari’ah law six types of divorce were recognized, but modern family legislation recognizes only the following three types of divorce:

a)      Talaq - Divorce by husband

In talaq there are four stages including initiation, reconciliation, completion and the aftermath. The initiation stage commences immediately on the husband pronouncing the phrase “I divorce you”. For the divorce to be official, three months have to elapse (without intercourse between the couple). This is known as the reconciliation stage whereby the couple have the opportunity to reconcile and, if they do not, may attend court. The completion phase begins thereafter - the wife becomes “non-mahram” to the husband and the pair must observe hijab rules. The aftermath is the final stage, which includes the husband caring for and supporting any children born of the union.

b)     Khula- Redemptive divorce or divorce by mutual agreement

In Khula the wife has the right to seek a divorce from her husband through the mutual consent of the husband or a judicial decree. It involves a woman paying her husband to gain his permission to allow her out of the marriage. Payment can be monetary or through some service provided to him. Her family might return his dowry - the goods or payment they received in exchange for their daughter as his wife. If he accepts, the divorce can move on to court for the tafriq process as defined below.

 

c)      Tafriq - Divorce by judicial order

Tafriq is a form of divorce in which the court intervenes. There are five grounds for valid tafriq applications: physical or emotional injury, irreconcilable differences, discovery after marriage that the husband has an incurable physical defect (i.e. impotence), failure to pay maintenance to the wife, or imprisonment or absence without reason by the husband for over one year.

The law also lays down certain provisions whereby both spouses may ask for separation if this has been mutually agreed. We have already established that expatriates and Non-Muslims seeking divorce have the option to opt for divorce under the applied law of their homeland whilst remaining in the UAE – but how does this work in practice?

The initial step is to approach the Moral and Family Guidance Section at the court. This will result in a “counselling session” involving a counsellor and both the husband and wife. The session shall be focused on discussing whether or not reconciliation will be possible, and after the meeting the counsellor will report to the Judge. It is important to note that the judge must be absolutely convinced that the marriage is irreparable in order to further divorce proceedings. Further to the session a couple will be offered a three-month period to reconsider their decision, and if they insist on proceeding thereafter their papers will be forwarded to the court. It is inevitably simpler if the divorce is uncontested with a mutual agreement already in place between the husband and the wife, thus negating the need for the court to impose a settlement arrangement.

If no prejudice is proved but disagreement continues between the spouses without the family guidance committee or the judge being able to propose a resolution, the judge shall appoint two arbitrators (from their respective families if possible) by no later than the following session. When appointing the arbitrators the judge shall also issue a timeline which shall not exceed 90 days, and shall lay out the date by which the task must be completed. This period may later be extended by a court decision. The two arbitrators shall investigate the causes of dissension and exert their efforts to conciliate the spouses. The arbitrators shall submit a report to the judge and the judge may, if he so desires, base his judgment on the arbitrators' decision. However it is highly likely that if the arbitrators have failed to conciliate the spouses, the divorce shall be granted. It is therefore evident that regardless of the legislative system applied, the emphasis of divorce proceedings in the UAE is on the encouragement of reconciliation.

The UAE law additionally contains provisions to ensure that a wife retains entitlement to financial support from her husband if she is/was lawfully married to him. It shall not matter if she is from a different religion or is technically financially independent. The maintenance amount is calculated in accordance with the husband’s financial stability and status. If the husband divorces his wife at his exclusive wish, she shall be entitled to enjoyment maintenance plus the waiting period maintenance depending on the husband's condition and subject to a maximum of the maintenance of her equals. The judge may allow the payment in installments depending on the husband's financial capacity, however he shall also consider the way in which any payment schedule would impact on the wife.

Any discussion on the subject of divorce will inevitably combine a collection of contrasting views and opinions. And in the midst of the debate, it is possible that crucial connected issues, such as child custody, maintenance and the assigning of assets may fall by the wayside. A parental dispute in relation to custody and maintenance of the child is likely to be covered under the PSL. The basic principle underlying the laws on the guardianship of a child is based on the question “what is the child’s best interest?” – a concept commonly known in law as the Welfare Principle.

Under UAE law a father is regarded as the natural guardian of a child. A distinction is made between a “custodian” and “guardian”– a guardian is bound by the duties of financially maintaining a child and making any decision with regards to his or her education and upbringing.[1]A custodian, as the word suggests, has the actual custody of the child and is obliged to raise him or her whilst ensuring all day to day needs are met.[2]

In deciding on such matters the courts of the UAE will primarily consider the age of the child and the mental state of the parents. The law nonetheless lays down certain conditions to be fulfilled by either of the spouses in order to be granted child custody. The law requires the person to be a mature adult of sound mind, honest, capable of raising, caring for and attending to the child, free of serious infectious disease, and free from criminal convictions.[3]Further, there are additional guidelines to be satisfied according to gender of the person seeking custody.

With regards women the guidelines stipulate that she should not be remarried and must have the same religion as that of the child - unless the court rules otherwise in the best interests of the child, on a condition that custody period shall not exceed 5 years, whether the child is male or female. Occasionally, the mother is granted custody of children up to a certain age, whereas the father is always considered the guardian. The mother may be awarded custody of girls under the age of 13 and boys under the age of 11.[4]Later, when the child is of the requisite age, the custody of the child may be transferred to the father should he so desire. However if the court rules the mother to be incompetent, custody of a child (regardless of age) can be given to the father or to the child's grandmother on the father’s side.

As for men, the law requires that the household must encompass a woman (such as a grandmother or aunt) fit to be custodian of the child, to be “Muhrem” if the child is female. This woman must be of the same religion as the child.[5]

Even in cases whereby two parents are married to each other, in the event of death of the husband the custody of the child becomes a subject of concern. Following the death, the child shall be taken into institutional care until the court hears the matter and (most likely) passes guardianship to the mother. In order to avoid the removal of the child from the mother’s care in such situations the assigning of an interim guardian is crucial. Therefore it is vital that a father includes in his will (or in a separate, endorsed and legally-binding document) an interim child custody agreement, affirming that the child shall be under the guardianship of the surviving parent or any other family member nominated in the agreement until the formal guardianship order is passed by the court.

Whether contested or agreed by mutual consent, matters such as divorce and child custody are universally acknowledged as being delicate issues. Indeed, the Holmes and Rahe “Stress Scale” specifies divorce as being one of the most stressful life events a person can go through. It is therefore essential that the practical steps are handled in an efficient, sensitive and case-appropriate manner in order to ensure a smooth and effective resolution for all parties involved. STA welcomes all enquiries pertaining to family matters, and ensures to afford every enquiry the respect and sensitivity that each family deserves.