Jurisdiction and Conflict of Law
1. Sources of Law
1.1 What is the primary source of law concerning the breakdown of marriage and the welfare of children within the jurisdiction?
Dubai is one ‘Emirate’ within the United Arab Emirates. Seven Emirates make up the UAE being: Dubai; Sharjah, Abu Dhabi, Fujairah, Ras Al Khaimah, Umm al Quwain and Ajman. Each Emirate is governed individually.
The laws of the UAE are coded and judgments from the Court of Cassation in Abu Dhabi set precedents. These cases assist with the interpretation of the statutory provisions.
The laws that are relevant to Family matters are:
- Federal Law No. 11 of 1992 – Concerning Civil Procedure matters (the ‘Civil Procedure Law’)
- Federal Law No. 5 of 1985 - On the Civil Transactions Law (the ‘Civil Transactions Law’)
- Federal Law No. 28 of 2005 - Personal Status Code (the ‘Personal Status Law’). The Personal Status Law was developed from traditional Sharia laws and principles and has taken into account the changing needs of modern society.
- Abu Dhabi Law No. 14 of 2021 - On the Civil Marriage and Its Effects in the Emirate of Abu Dhabi (the ‘Abu Dhabi Non-Muslim Personal Law’)
- Federal Decree-Law No. 41 of 2022 - On Civil Personal Status (the ‘Civil Personal Status Law’). The new personal law applies to non-Muslim citizens and foreigners of the country and is based on international practices in personal matters.
It is possible for non – Muslim expatriates to ask for the laws of their home countries to be applied within the courts of the UAE.
The following articles of the Civil Transactions Law, 1985, are relevant to Family law matters:
- Article 13: The law of the state where the marriage was concluded shall apply to personal status and the division of property, resulting from the contracting of the marriage.
- Article 16: substantive matters relating to guardianship, trusteeship, and tutelage or other systems, laid down for the protection of persons having no competence are governed by the law of the person requiring to be protected.
- Article 18: possession, ownership and rights over property shall be governed by the lex situs in the case of real estate property. (i.e., the law of the country in which the property is located could be applied).
However, in practice, the application of foreign law may face the following challenges –
- The application of foreign laws requires having all the relevant laws of that country translated into Arabic, fully legalized, and then put before the court.
- Foreign laws may not be applied if they are contrary to public order, morals or Islamic Shari’a (Article 27 Civil Transactions Law)
- Foreign laws may not be applied if their effect cannot be determined (Article 28 Civil Transactions Law). Therefore, if a Dubai judge cannot interpret foreign laws, local Dubai laws will be applied instead.
- Where the foreign law to be applied is the law of one party’s nationality, UAE law will instead be applied if that party has dual nationality or his nationality is unknown. (Article 24 Civil Transactions Law).
- Under the statutory provisions, each party may seek their laws to be applied. Practically the UAE courts may apply foreign laws if both parties agree to such law being applied, and the courts have the highest discretion in the application of such laws.
1.2 Which are the main statutes governing matrimonial law in the jurisdiction?
- Federal Law No. 28 of 2005 - Personal Status Code (the ‘Personal Status Law’). The Personal Status Law was developed from traditional Sharia laws and principles and has taken into account the changing needs of modern society.
- Federal Decree-Law No. 41 of 2022 - On Civil Personal Status (the ‘Civil Personal Status Law’). The new personal law applies to non-Muslim citizens and foreigners of the country and is based on international practices in personal matters.
- Abu Dhabi Law No. 14 of 2021 - On the Civil Marriage and Its Effects in the Emirate of Abu Dhabi (the ‘Abu Dhabi Non-Muslim Personal Law’).
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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