The solicitors in the Family Department at James Berry & Associates have more than 40 years family law experience between them gained in practice in both England & Wales and in the United Arab Emirates. Dee Popat and Madeleine Mendy are based in Dubai practising full-time and Mary Barton, now based in Europe, practices in a consulting capacity. The following comprises excerpts from an article first published in Family Law Week, giving an brief overview of the law applicable on divorce in the United Arab Emirates.
When people who are contemplating divorce first consult us as family lawyers in the United Arab Emirates (UAE), we have to ask certain preliminary questions about their personal circumstances, such as what the parties’ respective religions are and whether the parties hold dual or multiple nationalities. We also need to know whether any children of the parties were born out of wedlock and whether either of the parties have committed any indiscretions or have any criminal convictions, particularly if they pertain to, what are regarded in the UAE as, matters of ‘honour’, such as adultery or serious fraud. The importance of the answers to these questions will become apparent from this article.
Which law is applicable?
The UAE is an Islamic State and the family legal system is based on Sunni Sharia Law. If the parties, or husband, is Muslim, then unless they are nationals of a country that has its own personal status law specific to Muslims (such as GCC countries, India or Iran), then the Sharia Law of the UAE will be applied to the case. If both parties are non-Muslims, then they, or one of them, may ask the court to apply the law of nationality which would have to be produced in entirety, attested as being the current, applicable law and translated into Arabic. For parties to proceedings, this can be financially onerous, especially if the law is such as that in England and Wales, where we suggest that in contested proceedings it would be extremely easy for an advocate representing one of the parties to persuade the court that it is not possible to interpret and apply the law to the instant case. This is because the law of England and Wales is to be found not only in legislation and previously decided higher court cases but also includes European Regulations that are directly applicable and elements of the Human Rights Act – all of which have to be taken into account. Non-Muslims may also agree to the application of UAE Sharia law. If the court is persuaded that it cannot interpret or apply the law of nationality, or that law offends Sharia Law or Public Morals (for example, by clashing with local culture, custom and tradition), then the default position is that UAE Sharia Law will be applied to the case.
Recognition by UAE of foreign orders
The above are all factors that may play a part, not only in any proposed family litigation, but in determining in which jurisdiction any proceedings would be best pursued. That said, a primary consideration has to be that the law in the UAE does not provide for automatic recognition and enforcement of foreign family court orders. It is therefore essential to ascertain what obligations between the parties may need to be enforced in the United Arab Emirates.
Personal Status Law
The Personal Status Law (Federal Law No. 28 of 2005) (PSL) sets out the obligations a husband and wife have to each other throughout their marriage. They include an obligation on the husband to treat his wife kindly, to provide for his wife and their children in all respects and on a wife to treat her husband kindly, to safeguard her husband's property and home and to care for their children.
Since Islamic marriages are based on contract, negotiated between a wife's guardian and the husband or his representative, then on divorce the provisions of the marriage contract dictate a wife's capital claims, by way of any deferred or unpaid dowry. In addition under UAE Sharia Law a wife, when divorced by her husband, may claim limited compensation for the moral harm of being divorced. If, for example, a wife is divorced by her husband after a long marriage and she is very unlikely to re-marry, then her compensation award will be higher than if she is divorced after a short marriage and is highly likely to re-marry.
For a Muslim woman there is a mandatory three month waiting period before she may re-marry. This establishes whether or not the wife was pregnant at the time of initial pronouncement of the divorce and is clearly important to establish paternity and legitimacy. A husband has to continue to maintain and house his wife during this three month waiting period.
Many expatriates continue to conduct their marital financial relationship in the UAE as they would if living in their home country. Many Brits will continue a regime of joint finances, with both contributing financially to the well-being of the family, albeit in differing proportions according to their incomes. If they then find themselves in proceedings for divorce in the UAE, a wife may claim back from the husband the financial contribution she has made during the marriage. As non-Muslims may not have a nuptial agreement, a wife is entitled to request the court to award her a dowry, if the husband has sought the divorce and the wife resisted it, and may also apply for compensation.
There is no provision for capital adjustment between a husband and wife under UAE Sharia Law. The courts in the UAE will not exercise jurisdiction over property that is not situated in their respective Emirate. If the parties are not agreed on sharing equally any joint assets, then they will have to litigate in the jurisdiction where those assets are located. If, however, husbands and wives are able to reach agreement on separating their finances on divorce, then the court will approve any agreement that does not offend Sharia Law or Public Morals, even if the agreement includes provisions relating to assets that are not located in the UAE. Such agreements may be registered at the UAE courts, including arrangements for children, in the course of divorce proceedings; however, for ease of enforcement, it is preferable to obtain a court judgment in terms of an agreement by starting a court case.
In contested proceedings, regarding arrangements for the children of the marriage, the PSL provides that during the mother’s automatic custody period children will live with their mother and the father will have visitation rights. On the ending of the automatic custody period the converse applies. Some of the principles that are applied in English and Welsh cases could be argued to offend UAE Sharia law and Public Morals, where the family unit and a father’s relationship with his children have perhaps a higher regard, so that if a mother re-marries, she loses custody of the children (if still in her automatic custody period) as children should not be raised in a ‘stranger’s household’. Agreed arrangements for children termed so as to not offend UAE Sharia law or public morals are often relied on by divorcing expatriates.
The age of majority is twenty one Lunar years. Until then a child must have a Guardian who is responsible for making major decisions as to the child's upbringing and education etc. The PSL provides for a father of legitimate children to automatically be a child's Guardian, although a father may be stripped of guardianship if found not to be an appropriate person to exercise those responsibilities (eg he is guilty of a serious crime of honour). A mother has automatic custody under the PSL until a female child reaches thirteen Lunar years and a male child eleven Lunar years. If a mother is proven to be an unfit mother or re-marries, or if the father is Muslim and she is not, she may lose her custody rights when the child reaches the age of five Lunar years, or even before that age dependent on the specific circumstances. Whilst adultery is often viewed in much of the western world as a symptom of a 'failed' marriage, it remains a criminal offence in the UAE and if a mother commits adultery, then this is interpreted as a failure to promote the family's well-being and a failure to behave in a manner that puts the family's interests first, and may be a ground for loss of custody.
Providing for children (and their mother)
As a father is obliged to provide for his children, whether they are in his custody or not, whilst children are in a mother's automatic custody, a father has to maintain and accommodate his children (thereby also accommodating the mother). The level of maintenance will depend on the father's proven ability to pay. A mother may also claim a custodian's allowance and for provision of a maid, gardener, car and driver if the maid etc were provided during the subsistence of the marriage. There is no formula for calculating the amounts and we have seen a variety of awards being made, some of which have made it very difficult for the father to continue to work and live in the UAE. Wives may find themselves having to radically reduce their expectations, accommodation and lifestyle, perhaps having to consider relocation to their home country, either with or without the children, on whom the father may have placed travel bans. It is relatively simple and inexpensive for either parent to place a travel ban on the children, so that they are unable to cross the border and leave the jurisdiction.
It is not possible for a party to evade any obligations imposed on him or her by the courts in the UAE. Maintenance and money due under court orders are treated as 'debts due' and it is possible to obtain a travel ban against a debtor, preventing that person from leaving the UAE. If enforcement is necessary via the Execution Committee of the awarding court, debtors may find themselves arrested and imprisoned, until either their debt is paid or the parties reach a compromising agreement. An international arrest warrant may also be made, so that a debtor is required to meet their obligation from a different country, or, in some instances, as the matter will have moved into the criminal sphere, extradition proceedings may be brought under one of the various agreements the UAE has with other countries.
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