Overview of the Law
The personal status matters in the UAE are regulated by Federal Law No. 28 of 2005 (UAE Personal Status Law), as amended, and Federal Law No. 5 of 1985 on Civil Transactions Law, as amended. Additionally, the UAE government issued a specific family law, Federal Decree-Law no. 41 of 2022, applicable to non-Muslim residents, in case none of them wants to apply his/her home country's law in the UAE. It will come into force from 1st February 2023 and is based on the law previously issued by the emirate of Abu Dhabi, Law No. 14 of 2021, which mainly applies to non-Muslims based in Abu Dhabi.
While the UAE Personal Status Law continues to apply to Muslims in Abu Dhabi and in the rest of the UAE, the new law applies to the non-Muslims living in the country.
Custody and Guardianship under the Personal Status Law of 2005
As per the Personal Status Law, 2005, a custodian is an individual who takes care of the child on a day-to-day basis and has physical custody of the child. On the other hand, a guardian is an individual who is responsible for providing financial support, taking care of education, travel and general upbringing of the children.
Under the UAE Personal Status Law, there is no specific concept of joint custody and according to Article 146 of the UAE Personal Status Law, the mother has the first right to be a custodian, followed by the father.
Certain conditions need to be met by a custodian under Article 143 of the UAE Personal Status Law. These include having sound judgment, attainment of the age of maturity, fidelity, ability to raise the fostered child and provide for his maintenance and care, safety from dangerous contagious diseases and not previously condemned for a crime against honour.
In addition to the above, under Article 144 of the UAE Personal Status Law, if the custodian is a woman, then she should be of the same religion as the child and not be married to a man not related to the child unless the court decides otherwise in the interest of the child.
Article 145 of the UAE Personal Status Law states that if the mother is of a different religion than the child, the custody will be forfeited unless the judge regards the custody of the child with the mother in the interest of the child. However, in this case, the period of custody ends upon the child completing 5 years.
Till When Can the Mother Have Custody?
The right of the mother to have custody of the child ends up with the male child reaching the age of eleven and the female child reaching the age of thirteen unless the court believes that extending the age of custody is in the children’s best interest. In this case, the extension may be till the male child reaches the age of maturity and the female, up to her marriage. The father has the right to claim custody once the son and/or daughter reach the age of 11 and 13, respectively.
It may also be noted that the mother is entitled to the custody of the children during court proceedings unless the judge believes that such custody is not in the interest of the child.
Custody and Guardianship under the New Personal Status Law for Non-Muslims
Under Article 10 of Federal Decree-Law no. 41 of 2022, custody and guardianship have come to be the same. Therefore, the parents are given joint custody of their children until they reach the age of 18, meaning that they will contribute equally towards raising the children.
Similarly, under the Abu Dhabi Law No. 14 of 2021, the parents have equal rights regarding child custody until the age of 16 years old, and after this age, the child shall have the right to choose between his parents.
Conclusion
Child custody is an important consideration when spouses are getting divorced. While divorce in itself is a tough situation to be in when there are children involved, it becomes a harder situation and accordingly, it would be wise to discuss these matters with a family law expert.
Legal Update:
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.
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