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August 10, 2021
Divorce by mutual consent can be best understood as the legal process by which both the husband and wife mutually agree to divorce and, therefore, would like to terminate the marriage as per agreed terms. The mutual divorce petition is thus jointly submitted by the husband and wife to the Court.
In a mutual divorce, the parties often seek independent legal advice to obtain legal advice on the provisions governing separation, custody rights, visitation, alimony, property division etc. They would also seek expert legal advice to enter into a written settlement agreement finalizing the terms of the mutual divorce.
When a mutual divorce is agreed upon between the spouses, they often do not need any further judicial adjudication, as the spouses are not making any allegations against each other that require to be resolved by the judicial courts. This type of divorce is usually preferred by a couple as it gives them a higher degree of control over their separation terms. The parties can mutually negotiate and enter into separation terms that are tailor-made and suitable to their personal and unique conditions, rather than relying on separation terms that are imposed by a court of law.
The Mutual Divorce Process in the UAE:
A mutual divorce process is accepted in the UAE. The first step in the process includes an application to be filed before the family guidance committee of the respective emirate where the parties are residing. The family guidance committee receives the application and would assign a counsellor to the case.
The role of the counsellor is that of an independent mediator to try to resolve the disputes and issues raised by parties. When the parties wish to enter into a mutual divorce, the family guidance department would confirm the consent of both parties and facilitate the steps for signing the terms of the settlement agreement, which would finalize the divorce.
The mediation step is mandatory only for spouses who are governed by the Federal Law No. 28 of 2005, which is the Sharia-based personal status law, and it applies even in amicable divorce matters. In the instance any given party does not agree to enter into a mutual divorce, then they may request the family guidance department to provide them with a referral letter to approach the Court for further adjudication.
Non-Muslims of the UAE have been given the option to file for divorce by unilateral will, without the need to show damage or prove blame on part of the other party as a reason for divorce, and without having to resort to the mediation process before divorce, according to the provisions of Federal-Decree Law No. 41 of 2022 On Civil Personal Status.
Unlike other jurisdictions, UAE laws do not require a mandatory separation period to be imposed on spouses before a final divorce is granted in the UAE for non-Muslim residents. Other foreign jurisdictions usually require a mandatory separation period of twelve (12) months to be imposed before a mutual divorce application is submitted before the courts. The UAE does not have this mandatory provision for non-Muslims.
The general consideration for legal recognition of a mutual divorce concluded in a foreign jurisdiction is whether due process of law has been followed in obtaining the mutual divorce.
The above information might not apply if both parties are non-muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-muslim expatriate residents in case none of them wanted to apply his/her home country's law in the UAE. To know more information about this law, please feel free to click this link.