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Divorce in UAE – March 2021

Divorce in UAE – March 2021

27 Mar 2021
Divorce in UAE – March 2021

Article 1 of the Federal Law No. 28 of 2005 applies to all UAE residents –Emiratis and expats, Muslims and non-Muslims.  Therefore, if you an expat living / working in UAE and have a valid residency visa, you can apply to divorce through the UAE family Court in the Emirate that your family resides/works in.  

Specific advice from a family law trained lawyer should be sought as to whether the UAE is the appropriate jurisdiction to commence proceedings in, bearing in mind a number of factors including any agreement between the parties, any assets of the parties, where the assets are situated, whether matters in respect of any children have been agreed, whether there are likely to be any issues in respect of enforcement of a UAE Order, to mention a few.

We are able to advise in respect of jurisdictional issues, grounds for divorce, children and property matters when proceeding with a divorce through any UAE Court.   The position prior to November 2020 was that in the case of a contested divorce, the parties could request that the Laws of the parties’ nationalities should be applied with the husband’s home Country Laws being applied in the event of a dispute as to which Law should be applied.  Federal Decree No. 30/2020 now amends Federal Law No. 11/1992 of the Civil Transactions Laws stating that the Laws of the Country where the marriage was concluded will apply on divorce.  This means that the parties can request either the Laws of the Country of their marriage or the UAE Personal Status Law be applied to any divorce. This change in the Law should be considered by couples who had a destination marriage and could potentially divorce in UAE.  In practise, this could prove to be an issue considering that many ex-pat couples are now choosing to marry in various destinations around the world, with no personal link to the Country in which they marry.    

It is to be noted that if the divorce is to proceed on an amicable and uncontested basis, the parties can submit to the application of UAE Sharia law and agree terms before engaging in the Court process.  

Maintenance
The Personal Status Law outlines the maintenance available to a wife and for children of the marriage.  We are able to advice on the expected level of maintenance bearing in mind the personal circumstances of the parties.    

Assets and debts 
Both assets and debts need to be considered, especially in light of the general rule that if one party holds legal title to an asset in their sole name or is liable in respect of a debt in their sole name then in the absence of cogent evidence that the other has made a contribution to the asset’s acquisition, then the legal title holder has sole ownership.  Similarly, this applies to the contents of UAE bank accounts that are in one party’s sole name.  The potential impact of Law No 9 of 2020 in Dubai, regulation family ownership (as defined therein) on real estate and the contents of bank accounts held in Dubai and whether or not such provision is to be rolled out through the UAE and the impact of any ‘family ownership contracts’, may have a bearing on the distribution of assets and debts on divorce.

Children
The rights in respect of the children vary depending on the role of the parent.  The mother by default will become the ‘custodian’ of young children, and the father the ‘guardian’. Custody and guardianship of a child are two separate issues that must be addressed individually.  We will be able to advise on and discuss the responsibilities and obligations of each parent.  
 
Divorce process 
Once your case is registered online (or at the Court), the parties will be invited to a conciliation meeting with the Court Counsellor.  In current times, this meeting has been taking place remotely.  The Counsellor will discuss the case and any difficulties in the marriage.  The parties can try to iron out their differences or, at least, reach a settlement. The parties will need to provide their marriage certificate and any marriage contract, passports for both spouses and any children, and their birth certificates. Additionally, each document should be translated into Arabic and attested at the relevant Ministries. By law, the conciliation stage can only last three months after which there are two ways to proceed.
In any case where the parties are unable to agree a settlement, the case will go to the First Instance Court. After filing, the second party will reply and if required, the first party may counter any allegations.  This is done in writing, through Pleadings in Arabic and the process can go on for as long as necessary in order to enable the Judge to make a decision on the case. Both parties can choose to have a local advocate represent them, although this is not strictly necessary. Additionally, cases will be heard in Arabic, however, the Court will provide a translator. After a judgment is made, either party will have 28 days to appeal. The Appeals Court process is similar to that of the First Instance Court except that three Judges shall preside over the case.  A final appeal lies to the respective Emirate’s Court of Cassation. This Court will review all documents relating to the case to ensure due process. It is to be noted that new evidence may not be produced in any appeal. 
If need be, the case will come before the Enforcement Court if any terms of the Judgment have not been complied with.  If following the commencement of enforcement proceedings the parties agree to a settlement at the conciliation stage, the case will proceed directly to the Enforcement Court to approve the agreement.  
As seen from the above, if the matter proceeds to a contested divorce, the process will take some time and entail vast costs.  The length of time it takes to conclude a divorce depends on how complicated the case is and how amicable both parties are during the proceedings. Contested proceedings can take about 3 to 6 months, and perhaps even longer if the case becomes too complicated. 

For the reasons outlined above, the parties are encouraged to settle on an amicable basis and we strongly advocate negotiations between the parties to ensure a smooth transition throughout their divorce process.  This process will not only save costs for the family but also assist in the transition process, bearing in mind the best interest of the children.     


Costs 
These very much depend on specific instructions and whether the process is to be amicable or contested.   We are able to advise you of the potential costs and disbursements associated with the divorce process in the UAE.  These can range anywhere between AED 12,000 to AED 30,000, in the Court of First Instance,  if a local Advocate is instructed to deal with a contested divorce.  
  
UAE Order (Judgment) following divorce 
If you are living in the UAE as an ex-pat, you should be aware that if you divorce in the UAE, as long as the divorce took place in compliance with the Laws of the UAE, the divorce should be valid in your home Country.  It is however important to ascertain what obligations between the parties may need to be enforced in the UAE and ensure the terms are mutually entered into by way of a Settlement Agreement to be registered in the respective Emirates’  Court and for the provisions to be recognised and enforced in the UAE.
Once an Order is made, it can be translated and attested to be used in home Countries if required.

  
The above is a general overview and should not be construed as specific legal advice.  For further information or advice in relation to any family matters, please contact Dee Popat.

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