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August 19, 2021
The divorce process in the UAE allows for meditation steps before proceeding with litigation. The UAE Court system, in certain cases, requires meditation as an essential and mandatory procedure that the parties must complete before registering a court case.
Mediation before family disputes is made compulsory under the Federal Law No. 28 of 2005 On Personal Status. As per 98(3) of the Law, the court has to give the parties a chance to reconcile before proceeding towards litigation. However, the same does not apply to non-Muslim spouses in the UAE, meaning that non-Muslim married couples can move to the court directly and there is no need for mediation. This aligns with Article 3 of Federal Decree-Law No. 41 of 2022 On Civil Personal Status, which applies to the non-Muslims in the country unless they choose to be governed by their home country's law.
The following mediation process is, therefore, applicable only to those governed by the provisions of Federal Law No. 28 of 2005.
The first step in the mediation process in family matters is to register the case with the 'Family Guidance Section' at the family courts of the respective emirate. Either of the parties can initiate the case, and it must be filed in the court that has jurisdiction over the matter as per their place of residence.
Once the case is registered, a court-appointed counsellor contacts both parties and hears from them their issues and concerns. The family guidance counsellor is neutral and unbiased whose role is to guide both parties towards a possible amicable resolution of their dispute.
If the parties are willing to resolve their dispute amicably, whether it concerns divorce, child custody or maintenance, the parties may then proceed to enter into a written settlement agreement. The parties should be cautious and should take proper legal advice and guidance before entering into a settlement agreement.
A settlement agreement in a family matter covers a variety of rights, including but not limited to terms of the divorce, child custody, maintenance, visitation, relocation, finances etc., and therefore, it is critical to obtain the right legal guidance before entering into a binding settlement agreement.
On the other hand, if either of the parties does not provide their consent for an amicable resolution, then the mediation will be concluded, and the Counsellor proceeds to provide the claimant with a 'no objection letter' ("NOC") allowing the claimant to proceed to file the case before the courts.
Such a referral letter requires that the litigation proceed to be initiated within two months from the date of obtaining the NOC. If the claimant does not proceed with the litigation steps within the stipulated period as provided in the NOC then, the parties would likely need to repeat the mediation steps once again, leading to more delays.
Contested divorce proceedings under the Personal Status Law of 2008 often involve complex questions of Law, including choice of Law. Often parties pursuing contested divorce deal with complex underlying issues such as domestic violence, abuse, abandonment, adultery and child custody disputes etc.
It is critical to obtain the right legal guidance in all stages of your proceedings before the UAE courts. Always consult lawyers who specialize in family matters as they are well experienced in handling even the most complex of cases.
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.