Increase in divorce cases
According to reports in local newspapers, divorce rates in the UAE are amongst the highest in the region. Reasons for the high rates of divorce in the country include: marital infidelity, poor communication, job loss or financial strain, social media, religious and cultural differences, other ways of thinking about marriage, generational change and unrealistic expectations.
Steps for filing a divorce in the UAE
The first step is to register the case by either party at the Family Guidance Section at the respective judicial department, in one of the emirates. A court appointed conciliator will try to reconcile the divorcing parties.
The conciliatory procedure is a mandatory process of the divorce proceedings in the UAE. Parties are allowed to raise their concerns pertaining to the marriage in the absence of their respective legal representatives.
Amicable divorces can be concluded at this stage. Parties will need to draft a settlement based on the parties’ mutual understanding and sign it before the conciliator.
If one of the parties or both of them are determined about the divorce, then the conciliator will provide the claimant with a referral letter, permitting them to proceed before the court to conclude their divorce case.
The letter can be submitted to court at any time within three months from the date of issue. Once in court, the particulars of the divorce case fall at the court's discretion and each party has to provide evidence to support own claims against one another as well as in their own defence.
Divorce laws for Muslim couples
Islamic marriages are governed by the Sharia law. If both husband and wife are Muslims and residents in the UAE, Sharia/UAE law will most likely be applied to their divorce. The same is likely if the husband is a Muslim and the woman a non-Muslim.
Divorce laws for non-Muslim couples
Non-Muslim expatriate residents can file for divorce in their home country (domicile) or apply for divorce in the UAE.
If the parties wish to have the law of their home country applied, they may petition for this before the court. Article 1 of the Federal Law No 28 of 2005 for Personal Affairs states: The provisions of this Law shall apply on 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.
This means that relevant parties may ask to apply their own laws to personal status matters.
It also provides: The law of the state of which the husband is a national at the time the marriage is contracted shall apply to the effects on personal status and the effects with regards to property resulting from contracting of the marriage.
Whenever the law of the parties' home country fails to cover an aspect of the divorce procedure, the courts hold discretion to apply the UAE law.
According to Federal Law No 28 of 2005 for Personal Affairs, the biological mother of the child is the custodian and the father is the guardian. Custody involves day-to-day care of the child, which is usually granted to the mother without interfering with the right of guardianship awarded to the father.
At all times, the father is responsible for providing for the child financially. He is responsible for providing shelter, expenses for food, medical care, education and other necessities.
Custody and guardianship are two separate issues that must be addressed individually as parents do not share equal responsibilities for a child in the UAE.
The courts always act in the best interests of the child and therefore, unless given reason to believe otherwise, they keep him in the physical custody of the mother, whilst being under the guardian's (father's) supervision.
Article 156 of Federal Law No 28 of 2005 for Personal Affairs provides that a child's custody under the mother ends when their son reaches the age of 11 and when their daughter reaches the age of 13. The father being the guardian can claim the custody thereafter.
As set out in Article 143 and 144 of the law, a custodian must be:
- Mature enough and have attained the age of puberty
- Able to bring up and take care of a child
- Free from infectious disease
- Not have been sentenced for a crime of 'honour'.
If the custodian is the mother, she must:
- Not remarry unless the court decides it's in the best interests of the child
- Share the same religion as the child.
If the custodian is the father, he must:
- Have a suitable woman living in his home to care for the child (such as a female relative)
- Share the same religion as the child.
The mother also has the right to claim the extension of the custody period until their son finishes his education and their daughter gets married. In this case, the mother has to prove that she has been good with the children i.e. through their school performance reports, good medical health history etc.
The father can claim the custody of their son if he feels that their son is becoming too soft in nature by staying with the mother and that he would want him to grow up to be more responsible. In both circumstances, the judge will decide the case.
A custodian cannot travel with the child without the guardian's approval and vice-versa. Fleeing with the child without the consent of the other parent, could amount to child abduction. The parent abducting the child can face serious legal consequences for such action. If either parent has concerns, they can obtain a travel ban preventing the child from leaving the airport. If there is a dispute, the matter can be referred to a judge.
Updated on 30 Dec 2019