With the vast number of expatriates residing in the UAE, the question of how civil law and common law systems differ often arises, especially when it comes to family law proceedings. The principles of Family Law predominantly rest on shared universal values such as protecting the children, safeguarding the vulnerable, and ensuring that disputes are resolved fairly and swiftly in what can otherwise be deemed a strenuous process. Yet, the application of the principles varies vastly from Сountry to Country.
Countries predominantly exercise either Civil Law or Common Law, depending principally on its source of Law, but also a range of factors related to the history of the Country, the origins of its legal proceedings, and the culture and specific needs of a jurisdiction. On one hand, Countries that follow Civil Law place greater emphasis on specific sources of Law while Countries which follow Common Law rely more heavily on judicial decisions, both past and present.
Therefore, the subsequent handling of Family Law matters is also tailored to each Country’s family structures, religious affiliations, marriage processes, and societal make-up.
CIVIL LAW
ORIGIN
Civil Law systems worldwide are quite geographically spread, being more common in Europe, Latin America, Africa, and Asia. Such systems derive their Laws primarily from codified statutes and Judges implement the Country’s code to the letter of Law. Countries that follow this system are more rigid and structured in their handling of affairs. The UAE is one such example of a Country that practices Civil Law (alongside Sharia Law), with Federal Law No. 28 of 2005 (Personal Status Law) being the primary statutory instrument pertaining to Family Law matters. Since 15th of April 2025, it has been modified and reshaped as the new Federal Decree-Law No. 41/2024.
FLEXIBILITY OF LEGAL PROCESS
The rigidity of the Civil Law system has both strengths and weaknesses. Such a system ensures an airtight governance of legal activities, prioritizing systematic clarity on how to proceed with legal matters by looking up relevant statutes. This is undoubtedly important to maintain a strong legal system in a Country which deals with each case equally and fairly, but the lack of flexibility due to minimal judicial intervention also makes it difficult to tailor decisions according to case facts and specific scenarios, which can be especially disadvantageous in the Family Law arena. It can therefore be difficult to apply the most just solution.
As Family Law cases need to be handled with care, the lack of flexibility and judicial involvement from Judges can lead to decisions that may be solid and systematic but fail to consider the emotional aspect of such volatile situations.
FAMILY CONTRACTS UNDER CIVIL LAW
The rigidity directly influences the types of contracts created under Family Law, such as Prenuptial and Postnuptial Agreements, in Civil Law systems. Such documents tend to be shorter and use broader terminology than Common Law contracts. This is a result of the system’s fixed reliance on statutory provisions, as specific terms are often incorporated in the contract by reference even if they are not explicitly stated in writing.
COMMON LAW
ORIGIN
Common Law is a system of legal governance that is continuously developed by judicial precedent as a Country evolves, whilst allowing freedom of interpretation. It is rooted in the doctrine of stare decisis (“to stand by things decided”), with its role being quite common globally. The presence of Common Law is amplified in Countries that were once colonized by the British Empire as it was the common body of Law exercised across all the King’s Courts in England. While Common Law Countries do utilize statutes, their priority remains analyzing past cases with similar facts, reviewing judicial decisions, and generally following suit.
FLEXIBILITY OF LEGAL PROCESS
Common Law systems emphasize flexibility and judicial interpretation. Precedents can be either binding or persuasive, allowing judges to approach cases with empathy and subjectivity — an especially valuable trait in family law proceedings. The active involvement of Judges through their inquisitory role also ensures clear investigation of specific case facts.
Furthermore, Common Law adopts the idea of “case of first impression” i.e. cases that have no clear precedent or legislative authority, where they establish a new precedent based on how the issue is resolved. As Family Law issues are always evolving and can be extremely distinct and personal to different situations, such an approach permits Judges to find the most just solution to specific predicaments, rather than just finding an umbrella term or provision in existing statutes that would likely accommodate the problem unsatisfyingly.
FAMILY CONTRACTS UNDER COMMON LAW
The flexibility of Common Law is restricted in its creation of contracts. To tackle this issue of ‘over-flexibility’, which can be argued as conferring too much importance on the subjectivity of the Judge and possibly creating inconsistencies in the application of Law, Family Law contracts and documents are made with precision and clear terms, setting out the intent of the parties in detail and incorporating more descriptive legal definitions than Civil Law contracts. This is because contracts are tailored to each case and there are few statutory provisions that are implied through reference, making it necessary to address all intended terms, requirements, and demands, while limiting the potential for vagueness, and ensuring legal indisputability if brought before the Courts.
MIXED LEGAL SYSTEMS
Interestingly, while Civil and Common Law remain the two dominant bodies of Law in the world, there are Countries that practice a mixed approach, incorporating both Civil and Common Law elements in their legal affairs, such as India (which further incorporates customary and religious Laws as well). This creates a more complex governing body, though it is arguably required for such a culturally and religiously diverse Country. Common law forms the foundation of the Country’s legal system, but it has been continuously altered to accommodate personal affiliations, with India also possessing far more extensive statutes for specific legal guidance compared to a purely Common Law Country such as the Special Marriage Act, 1954, which subsequently creates its element of Civil Family Law.
As a conclusion, Civil and Common Law systems vary greatly in their approach to dealing with Family Law matters, with one prioritizing a more systematic approach and the other lending more flexibility to individuals in a vulnerable position. However, the issues of lack of flexibility and the potential for too much flexibility present in each system are both contested by the contracts prepared in each type of jurisdiction. Therefore, neither system is necessarily better or worse, and both systems might be suitable for different people based on their specific situation.
If you’re seeking guidance on any aspect of Family Law in the UAE, our experienced team can provide expert advice tailored to your situation.
For further advice in relation to any Family Law matter, please contact our family law department on [email protected] or Dee Popat on [email protected]
Head of Family Law / Senior Consultant