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April 25, 2023
The laws governing your Divorce
Personal matters in the UAE, up till February 2023, were governed by Federal Law No. 28 of 2005 Personal Status Law, along with some supporting provisions from the Civil Transactions Law of 1985. However now, as part of making the UAE more attractive for foreigners, the government has put forward an altogether separate law, which is based on internationally accepted practices and customs in terms of family laws.
The new Federal Decree-Law, No. 41 of 2022, will come into force on 1st of February 2023, and has followed the provisions of the previously enacted Abu Dhabi Law No. 14 of 2021 on Civil Marriage and its Effects in Abu Dhabi. Family matters for non-Muslims, including marriage and divorce, will now be governed by these laws; meanwhile, the Personal Status Law of 2005 will continue to govern Muslims in the UAE. The following article discusses the divorce process under the two laws, namely: Federal Law No. 28/2005 on Personal Status, and Federal Decree-Law No. 41/2022 on Civil Personal Status
Federal Law No. 28/2005 on Personal Status
Under Article 98 of the Personal Status Law, divorce means cancellation of the valid contract of marriage between the spouses. Divorce can be commenced by the husband, and for the wife to initiate divorce, she must either have such right in the marriage contract or have grounds of ‘harm’ as mentioned in the law.
Divorce can be pronounced verbally, or given in writing, and in case of inability to do either, communicated by understandable gestures. Divorce as per Sharia law can be pronounced by saying “talaq”, which is Arabic for “I divorce you”, by either of the spouses, in the presence of a witness. For Muslims, the divorce will be valid if given in this manner, but to get it recognized in the UAE, the divorce should be registered with the courts. The spouses can also directly approach the court for a divorce judgement.
Mediation: Before referral to the courts, the spouses are made to go through the process of mediation, conducted by the Family Guidance Committee, as per Article 98/3 of the law. The counselors in the Committee help to achieve reconciliation between the parties, and if there is no agreement, the matter moves to the judge.
Grounds: The judge will decide the grounds for divorce from any one or more of the following:
Revocability of divorce: Once divorce is initiated, the wife is required to go through a waiting period, called “idda”, which lasts for almost 3 months. It is required to ascertain as to whether the wife is pregnant. If the wife is pregnant, the waiting period will last up till the birth of the child. The expenses of the wife will be borne by the husband during this period. The period of idda also allows the parties to reflect upon their decision of divorce, and if they wish, they can revoke the divorce and continue their marital relationship.
Federal Decree-Law No. 41/2022 on Civil Personal Status
No-fault Divorce: Under the new law for non-Muslims, the spouses need not provide a reason for initiating divorce, or blame the other party for its cause. Moreover, divorce can be filed jointly or by one party alone; the party seeking divorce will need to file a case before the court, and divorce will be affected after notifying the other party, as under Articles 7 and 8 of the law.
Exemption from Mediation: The new law also exempts its subjects from the mediation process, i.e. those filing for divorce under the new law need not go through the Family Guidance Committee for reconciliation, and can straightaway approach the court.
There is no obligatory waiting period for the wife under the law, and the divorce is affected as soon as the judgement is pronounced.
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.