Divorce and family laws for British expats in the UAE
The United Arab Emirates (UAE) is made up of seven emirates: Dubai, Abu Dhabi, Sharjah, Fujeirah, Ajman, Ras Al Khaimah and Um Al Quwain. The whole of the UAE is governed by the same legal system, but different Emirates may interpret it more or less strictly. In this article I will discuss some areas of family law in very general terms. As expected, there are exceptions to most rules.
The Law of Civil Transactions of the UAE sets out which law should be applied to a particular case. There is scope for the applicable laws for Muslims and Non-Muslims in the UAE to differ. Non-muslim expatriates may seek to apply the law of their home countries to divorce and family law disputes in the UAE courts. However in practice, foreign laws are rarely applied within contested cases because of the complexity and cost of translating and applying these laws.
Federal Law 28/2005 of Personal Affairs
This law covers all aspects of family law: marriage, divorce, finances, children matters and inheritance. It is a common misconception that Sharia law will be applied directly to resolve family matters in the UAE; in fact, laws derived from it are applied. Principles and rules of Islamic jurisprudence (fiqh), or the law in which the Federal Law is based are referred to for understanding, interpreting and construing it. For issues on which this statute is silent, the courts will refer to the relevant scholars (Malik, Hambal, Shafei and Hanifa) for their interpretation of the Qu’ran.
In general terms, the Dubai courts have jurisdiction to deal with a family matter if the respondent to the application has domicile, residence or a workplace in Dubai. Where this is not the case but the applicant has domicile or residence in Dubai, the courts may still deal with applications for divorce or maintenance. This applies to expatriates as well as Emirati nationals.
The respondent will be sent notice of any proceedings by the court. This may be by fax, e-mail, registered post or other means. If the respondent refuses to accept proceedings, the matter will be referred back to the judge for consideration. As in the UK, the court may order alternative methods of service as it sees fit, such as an advertisement in a newspaper.
The judgment at the conclusion of the case must also be served on the respondent if there were not present at court to receive it. From the date of service of the judgment, 30 days are allowed for them to appeal.
Family Guidance Committee
All family matters (except for inheritance, urgent matters and those where mediation would not be appropriate) must be referred to the Family Guidance Committee before the court will issue an application and list a hearing. The Family Guidance Committee is a body associated with the court. Both parties are given notice (by post and / or telephone) of the date on which they must attend a meeting. The meeting is carried out by a family guidance officer who will act as a mediator or marriage guidance counsellor. The officer will discuss the dispute, or in the case of divorce, the problems arising in the marriage, and encourage a reconciliation or settlement. If a reconciliation or settlement is reached, it will be noted in a report, which is signed by the officer, the parties and a judge. The procedure is similar to a conciliation appointment in England and Wales, although the officers will not meet with the children, or report to the judge if a settlement is not reached. The officer will give the applicant written permission to pursue their case through the courts if a settlement cannot be reached. The applicant will then present this permission to the court clerks who will list the matter for a hearing.
The law states that a Muslim man in the UAE may take up to four wives, but must treat them all equally and fairly in every respect. If a wife finds that her husband is not meeting his financial obligations to her as a result of him taking another wife or for another reason, she may use this as justification for divorce. The husband must house all wives separately. However, in Dubai and other emirates, it is extremely rare and almost frowned upon for the young generation to have more than one wife. An occasion when it may be acceptable is if the first wife was unable to have children and agreed to her husband taking a second wife for this purpose.
The Muslim marriage is a contract and may only be terminated by divorce or death of the parties. The husband may divorce the wife, or the wife may divorce the husband if was stated in the marriage contract that she may do so. There are two ways of divorcing (for the purposes of this article it will be assumed that it is stated in the marriage contract that the wife is able to divorce the husband). The first is pronouncing Talaq (which means “I divorce you” in Arabic). The husband or wife must say or write “I divorce you” or Talaq” on three separate occasions in the presence of a witness. The witness will then be able to give evidence if necessary when the Talaq is later formalised at the court. There are financial implications for a spouse that commences a divorce using this method.
The second means of obtaining a divorce is by application to court. This is applicable for non-musli expatriates. The applicant will issue a divorce case and the parties will be referred to the Family Guidance Committee as described above. If there cannot be reconciliation, the matter is listed for a hearing before a judge. The judge will determine whether there is valid reason for the divorce. These include: sterility, sexual impediment, deception, adultery, if one spouse is affected by a fatal disease that may pass to the other, prejudice that makes the continuation of the marriage impossible, lack of maintenance payments by the husband, prolonged absence of the husband from the matrimonial home and imprisonment of the husband for more than three years. To determine whether the alleged basis of the separation is true, evidence may be produced in the form of witnesses or written evidence.
Following the separation of the husband and wife, there is a waiting period of three menstrual cycles (or if not known, three months). This is to find out if the wife is pregnant before the divorce is finalised (if she is, the divorce can go ahead, but she will not be able to remarry until the child is born). During the waiting period, the husband must continue to support the wife financially and provide her with maintenance as during the marriage.
In terms of capital, each party will retain any property or assets that are in their respective names. The wife will also receive the remainder of her dowry, if specified in the marriage contract that she will receive some dowry “later”.
The husband is also obliged to provide the wife with a home in which to live with the children, if she is their custodian and does not have one already. The court is likely to order their home to be the former matrimonial home, to avoid disruption for the children.
The husband must also pay maintenance to the wife for the benefit of the children while they live with her. This must be sufficient to meet any rent or mortgage for a home in which they live, their school fees, payments for a maid, their clothing and food etc. When the wife ceases to have custody of the children (see below), the father or guardian is obligated to provide for them financially. This financial support must continue until a girl marries, and until a boy is at an age when he should earn adequate money to support himself (unless he is pursuing further education). The father is still obligated to support his daughter if she divorces or her husband dies and she has no other means of support. Similarly a father must continue to support his son after adulthood if he is unable to financially support himself.
Maintenance and financial support
After the marriage, the husband is obliged to financially support the wife. He must provide her with food, clothing, a house, a servant (if she is used to having one) and provide her with her reasonable needs. Maintenance during the marriage may be increased or decreased depending on changes in the parties’ circumstances. If sufficient maintenance is not provided, the wife may make a claim to the court for it (to included backdated maintenance but not for a period of more than three years). The wife will forfeit her right to maintenance if she abandons the matrimonial home, does not allow her husband to enter the matrimonial home, denies her husband a sexual relationship or refuses to travel with him without good reason.
The parents do not share equal parental responsibility for the child as they often would in England. Following a divorce, the mother will become the “custodian” of the children, and the father the “guardian”. Having custody of the children means the mother must keep, nurture and care for the children. The mother will retain custody of the children as long as she is of sound mind, honest, free from infectious disease and has not been convicted of a “dishonourable crime”.
Unless the court orders otherwise, custody will move from the mother to the father once the children reach the age of 11 for a boy and 13 for a girl. Unless the court intervenes and orders otherwise, custody will also move to the father if the mother remarries, or if she takes a religion other than that of the children. If the father is not the appropriate custodian for the children, custody will instead be given to the maternal grandmother, paternal grandmother or sisters in that order.
Guardianship involves supervising, protecting, educating and preparing a child for life, and agreeing to the child being married when necessary. It will often mean making the decisions regarding a child’s schooling, or medical treatment for example. If the parents divorce, the guardian must be able to exercise this right to have regular contact with the children. For this reason, the custodian must not remove the children from their place of habitual residence without the consent of the guardian or judge. If a dispute arises regarding contact, either party may apply to the court for the judge to decide what level of contact is appropriate and in the best interests of the child. It may be staying or visiting contact, but staying contact with the non-resident father is not deemed appropriate for children under the age of two years.