Q: What are parents’ legal obligations regarding children’s
custody and parental responsibility after the relationship or marriage
breaks down?
A: Parents do not share equal parental responsibility for the
child. Following a divorce, the mother will become the custodian of
young children, for boys until the age of 11 and for a girl until the
age of 13, and the father, the guardian. The custodian is obliged to
care for the child, meet the child’s day-to-day needs and have the
child live in their home.
Q: Under what circumstances may a parent apply to remove their
child from the jurisdiction against the wishes of the other parent?
A: The custodian of the child may not permanently settle the
child in another country if it would cause harm to the father, and if
the distance between the two countries prevented the non-resident
parent from visiting the child and returning home in one day (Article
151).
If the guardian can prove that his residence in the UAE has expired
for valid reasons, such as the end of his employment, or due to any
other reason, which the court will not find arbitrary, the court may
allow the guardian to take away the children and the mother will have
the choice to join them or not.
Q: What are the obligations of a custodian?
A: As set out in Article 143 and 144 of the Personal Status
Law, a custodian must:
i. Be rational
ii. Be mature enough and have attained the age of puberty
iii. Be honest
iv. Be able to bring up and take care of a child
v. Be free from infectious disease
vi. Not have been sentenced to a crime of “honour”
vii. If the custodian is the mother, she must:
a) Not remarry unless the court decides it is in the best interests of
the child
b) Be the same religion as the child
viii) If the custodian is the father, he must:
a) Have a suitable woman living in his home to care for the child
(such as a female relative)
b) Be the same religion as the child
Marriage Rules
Q: Are marriages conducted or registered outside the UAE
recognised here?
A: For a marriage contracted outside the UAE to be recognised,
a marriage certificate should be legalised by the foreign ministry in
the country in which the marriage took place, and then attested by the
UAE embassy in that country. Further attestations should take place at
the Ministry of Foreign Affairs in the UAE.
Q: Which marriages are not recognised, despite being validly
attested?
A: In certain circumstances even a validly attested marriage
certificate would not be sufficient to allow a marriage to be
recognised in the UAE. This is because in Islam, certain marriages are
not capable of recognition. Examples of these are:
• Marriage between a Muslim man and a woman who is not Muslim, or is
Christian or Jewish.
• Marriage between a Muslim woman and a non-Muslim man.
Q: Are prenuptial agreements entered into outside the UAE
binding within the UAE?
A: If a Muslim couple wish to rely on a prenuptial agreement
legitimately drafted in another jurisdiction, it is likely that the
UAE courts would not choose to enforce the terms, especially in
relation to children. The contract will be void or voidable if any
term in the agreement conflicts with Sharia, public order or morals in
the UAE (Article 27 Civil Procedure Law). Public order is defined at
Article 3, Civil Procedure as “matters relating to personal status”.
This means that any terms in the contract that are against or
conflicting with UAE morals (for example, reference to unmarried
cohabiting couples) would be void.
Getting Divorce in UAE
Getting a divorce through the UAE courts generally takes between three
months and a year. But it can take longer.
However, Diana Hamade, a Dubai-based Emirati lawyer for International
Advocate Legal Services, says some judges are shortening this by not
allowing either party to play games in a bid to stall the process.
Divorce should be filed at a court in the emirate in which you are a
resident.
Courts in the UAE will grant a man divorce without a motive, but for a
woman the grounds sought have to be physical or psychological harm. If
no harm is found, she can ask for ‘khulu’ – needing a divorce because
she is no longer in love with her husband.
If you are an expatriate, first check
whether an order from the UAE courts can be enforced in your home
country.
Islamic marriages by and large are governed by Sharia law, and the
same is likely if the man is Muslim and the woman non-Muslim (either a
Christian or a Jew, as no woman of other religions are permitted to
marry a Muslim man unless they convert to Islam.)
While expatriates can divorce anywhere –
with the divorce ruling recognised by the authorities here as far as
residency, employment benefits and other matters are concerned – Ms
Hamade says there can be problems enforcing some foreign judgments if
one party fails to comply.
Whenever the law of the husband’s home country fails to cover an
aspect of the divorce procedure, the courts hold discretion to apply
the UAE law.
There are five stages of divorce proceedings in the UAE:
The conciliator
To start divorce proceedings in the UAE, a couple has to see a
conciliator to try to iron out their differences or reach an amicable
settlement.
“Conciliators are not lawyers or judges, but more like family guidance
counsellors,” says Ms Hamade. “They will meet each person individually
and then together, and give them some time to contemplate their
situation to be sure that divorce is the right path for them.”
This process should not go beyond the three-month period stipulated by
law.
You are required to submit the marriage certificate, the marriage
contract (an agreement that may stipulate a dowry if the couple are
Muslim), passport copies of the spouse and children, and the
children’s birth certificates.
First Instance Court
The case passes to the First Instance Court once the conciliator feels
no settlement will be reached.
You are free to bring a lawyer, but the court will still hear you
without one. As court proceedings are in Arabic, a translator is
provided for those who require one.
Once a case is filed, the other party has the opportunity to provide a
defence reply and the first party is given a chance to review that
defence and produce a counter-reply. This process can go on as per the
discretion of the judge before he moves to a judgment. Once this is
issued, there is a 28-day time period to appeal.
During this process, the court will ask for evidence of any claims
that one of the parties is making, such as witnesses or documents of
payments. There are also instances when cases are referred to referees
– two people assigned to look into a dispute to see who is at fault.
These people will give a report to the court and the judge will give
his decision upon it.
Appeal Court
This follows the same process as the First Instance Court, but with
three judges rather than one. Again, a 28-day period is given for
parties to dispute further.
Court of Cassation
This reviews the papers to ensure the legal technical processes were
followed. No new evidence can be submitted here.
Enforcement Court
This court actions the requirements stipulated in the judgment
verdicts (for example, to pay school fees). If at any point during the
first four stages there is agreement, they can fast forward to the
last stage of proceedings in the Enforcement Court.
The costs
Lawyers’ fees are between Dh8,000 and Dh25,000 for an amicable divorce
and Dh35,000 to Dh50,000 for a disputed divorce. The divorce is
separate to the financial settlement, which is billed in addition.
Although the courts provide a translator for free, translated
documents cost up to Dh80 per page. There are no court fees except
referees when appointed, which cost Dh3,000 to Dh10,000.
(The National)
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