Children are at the heart of every family, and their welfare and protection are paramount to parents and the authorities responsible for safeguarding their interests. Following the breakdown of a marriage or relationship, parents understandably want to ensure that appropriate arrangements are put in place to protect their children and provide them with stability and security.
The UAE’s legal framework continues to evolve in recognition of the importance of protecting children and promoting their best interests. Recent developments have strengthened the legal protections available to children, both within the family and in the increasingly important digital environment in which they live.
Two areas are particularly significant: the approach to child custody following divorce or separation and the introduction of enhanced protections governing children’s use of digital and social-media platforms.
These developments reflect a broader recognition that children require protection not only from the consequences of family breakdown but also from emerging risks associated with their online activities. At the same time, the evolving approach to custody recognises the important role that both parents can play in their children’s upbringing, where this is consistent with the child’s welfare.
Ultimately, the focus remains on the best interests of the child. Decisions concerning custody, care, education and the child’s wider welfare should be approached with the child’s needs, stability and development at the forefront.
The development of these legal protections demonstrates the UAE’s continued commitment to creating a framework in which children are safeguarded both within the family unit and in the wider community. As family structures and technology continue to evolve, family law must similarly adapt to ensure that children’s rights, welfare and security remain protected.
Joint Custody Following Divorce in the UAE
For non-Muslims who fall within the scope of Federal Decree-Law No. 41 of 2022 on Civil Personal Status, joint custody is an important feature of the legal framework following divorce. Under Article 10 of Federal Decree-Law No. 41 of 2022 on Civil Personal Status, custody is regarded as a joint and equal right of both the father and mother following divorce. The underlying principle is that both parents should continue to play an equal and active role in the upbringing of their children following separation. The legislation seeks to promote the continued involvement of both parents in the child’s life, while protecting the child’s psychological welfare and limiting the potential adverse effects of parental separation.
Accordingly, divorce does not, in itself, result in one parent being awarded sole custody of the child. Instead, the starting point under the Civil Personal Status Law is that both parents should retain their parental role and responsibilities.
How Joint Custody Operates in Practice?
The practical implementation of joint custody is further addressed by Cabinet Resolution No. 122 of 2023 concerning the Executive Regulations of Federal Decree-Law No. 41 of 2022. Unless one parent waives their right to custody or formally requests that the Court determine custody differently, the Court will generally provide for joint custody as part of the divorce judgment, with custody shared equally between the parents pursuant to Article 13 of Cabinet Resolution No. 122 of 2023.
In practice, it is important to distinguish between the concept of joint custody and a rigid division of the child’s time. Joint custody does not necessarily require the child’s time to be divided on a strict 50/50 basis in every case. The appropriate arrangements may depend upon the particular circumstances of the family, including the child’s welfare and practical considerations relating to the parents’ respective circumstances.
The focus should therefore be on establishing an arrangement that enables both parents to maintain a meaningful and continuing role in the child’s upbringing, while ensuring that the child’s welfare remains paramount.
What happens when there are disagreements between the parents?
Joint custody inevitably requires parents to communicate and cooperate in relation to important decisions affecting their children. Disagreements may nevertheless arise concerning matters such as education, healthcare, travel, living arrangements or other aspects of the child’s upbringing. Where the parents are unable to agree, Article 20 of Cabinet Resolution No. 122 of 2023 provides a mechanism by which either parent may apply to the competent Court for a determination. The Court may then determine the appropriate course of action having regard to the best interests of the child.
This provision is significant because joint custody does not mean that parents are required to resolve every disagreement themselves. Where parental disagreement becomes detrimental to the child or prevents an important decision from being made, the Court retains the power to intervene.
When can joint custody be changed or terminated?
Although joint custody is the statutory starting point for parents falling within the scope of the Civil Personal Status Law, it is not necessarily an absolute or permanent arrangement. The Court may bring joint custody to an end, or otherwise alter the arrangements, where continuing joint custody would not be in the child’s interests. Circumstances that may be relevant include :
- a parent’s failure to discharge their parental responsibilities,
- criminal conduct affecting the child’s welfare,
- substance misuse,
- health circumstances that prevent a parent from properly carrying out their parental duties, or
- other circumstances that the Court considers relevant.
It is important to understand that the existence of such circumstances does not automatically mean that joint custody will be terminated. Rather, the Court will consider the individual facts of the case and determine whether a different custody arrangement is necessary to safeguard the child’s welfare.
The approach under the Civil Personal Status Law represents a significant emphasis on continued parental involvement following divorce. The legislation recognises that, wherever appropriate, children should be able to maintain a meaningful relationship with both parents and that parental separation should not unnecessarily diminish either parent’s role in the child’s upbringing. At the same time, joint custody is not intended to operate at the expense of the child’s welfare. The Court retains an important supervisory role and may intervene where the parents are unable to agree or where the circumstances demonstrate that the existing arrangement is no longer appropriate.
For non-Muslim couples within the scope of Federal Decree-Law No. 41 of 2022, the post-divorce framework places considerable emphasis on both parents continuing to participate in their children’s lives to meet the welfare needs of a child.
Read Part 2: UAE Child Digital Safety Law: Children, Social Media and Online Protection
Where there is uncertainty regarding custody arrangements or parental responsibilities, specialist legal advice should be obtained based on the individual circumstances of the family.
For specific advice regarding any of the matters outlined above, please contact our Family Law Department at [email protected] or Dee Popat at [email protected]
