A British expatriate living abroad does not necessarily need to divorce through the local courts, and the majority do not. A divorce can take place through the English courts as a paper application without the need for either party to attend court. The financial matters arising are then governed by English law.
Jurisdiction for children matters is not as straightforward as for divorce. Generally speaking, the English courts will not accept an application concerning children unless the children reside or are present in England, or a divorce has taken place in England and both parents agree to England having jurisdiction for children matters.
If jurisdiction is established, the court in England can make orders concerning arrangements for the children. Such applications are for a ‘child arrangements order’ – the court no longer refers to ‘residence, contact or custody’. There is difficulty with enforcement of English orders in Dubai where the children are living in the UAE. For this reason children matters for expats in the UAE, are usually dealt with by the UAE courts.
In Dubai the law is as follows:
Parents do not share equal parental responsibility for the child in the UAE; the concept of parental responsibility does not apply as in England. In Dubai, following a divorce, the mother will become the ‘custodian’ of young children, and the father the ‘guardian’.
The custodian is responsible for the nurture and care for the child, and for meeting the child’s day to day needs and have the child live within their home.
As set out at Article 143 and 144 of the Federal Law 28 of 2005 (Personal Status Law), a custodian must:
- be rational
- be mature enough and have attained the age of puberty
- Be honest
- Be able to bring up and take care of a child
- Be free from infectious disease
- Not have been sentenced for a crime of ‘honour’
If the custodian is the mother, she must:
- not re-marry unless the court decides it is in the best interests of the child; and
- share the same religion as the child;
If the custodian is the father, he must:
- have a suitable woman living within his home to care for the child (such as a female relative)
- share the same religion as the child
As set out at Article 146 Personal Status Law, the mother will have custody of young children. Unless the court orders otherwise, it is expected that 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. If the transfer of custody is disputed, the court will consider the facts in each case and make a decision. Whereas in England the status quo argument would weigh heavily in the mother’s favour, in the UAE that decision is evenly balanced.
The court is also able to move custody to the father or other relative if it is determined that the mother does not meet the criteria for a custodian as set out above. However when determining such matters, the court will consider the welfare of the child as the primary concern and make a decision based on the child’s best interests in each particular case. It is common these days for the court to be flexible in respect of the custody criteria to ensure that the child’s best interests are met.
Guardianship involves supervising, protecting, educating and preparing a child for life, and (when required) giving the necessary consent for the child to marry. The guardian makes the decisions regarding a child’s schooling, or medical treatment for example. Guardianship involves guiding the child in the right direction in terms of morals, right and wrong, education and religion. The guardian must be rational, mature, honest and able to fulfil the requirements of guardianship. He must also be able to arrange his affairs as well as those of the child.
If the parties are able to reach a voluntary agreement between themselves, it is advisable for that agreement to be formalised and lodged at court locally so that the arrangements are fixed. The scope for later disputes is minimised and any unintended consequences of relying on local law can be avoided.
If a child is living and settled in the UAE and is abducted by one parent to England , it is possible for the left behind parent to apply to the English court for an order to return the child to the UAE. This involves the child being made a ward of the English court and invoking the inherent jurisdiction of the court.
Such situations must be dealt with sensitively as it is usually the mother that flees with the children, fearing repercussions of Sharia based laws in the UAE. Careful negotiations can allow the parties to agree children arrangements, and the use of the English courts to avoid a financial outcome in line with their expectations. Agreements reached can be put simply before the reconciliation committee of the Dubai courts, to produce a binding agreement capable of enforcement in the UAE.