Your Guide in Family Cases
Introduction
In this article we will guide you to better understand the legal process which is followed in most family disputes.
Part 1
The first stage of the legal process for divorce is the Family Guidance Committee. In family matters, the local courts cannot be approached directly. In such cases, a no-objection certificate or a transfer letter must be obtained by the Family Guidance Committee before approaching the courts. This is considered an important step as they try to resolve any matters amicably between the husband and the wife due to the importance of family in the social context.
- While approaching the family guidance committee, the claimant needs to take the following documents with him/her:
- Emirates ID
- Original Marriage certificate/contract
If the marriage has been contracted outside the UAE, then the document should be Legalized by the Ministry of Foreign Affairs in that country and attested by the UAE embassy in that country. The same document then has to be attested by the Ministry of Foreign Affairs in the UAE, translated into Arabic and stamped by the Ministry of Justice. Some countries require marriage contracts to be stamped by their embassies in the UAE. That step should be followed accordingly to the requirement.
- Once the claimant has filed the above documents, the Family Guidance Committee gives a date for the hearing to the other party. At this stage of the process, the husband and the wife are required to appear in person before the committee and cannot be represented by family members or lawyers.
- If the other party does not attend the hearing date, the Family Guidance Committee might grant one more date before issuing the No Objection letter or Transfer Letter to file the family case.
- When such a notice is received by the respondent, it is strictly advised that the Respondent seeks legal advice before the hearing date and make the earliest appointment with a lawyer of good repute to assess the effects of the claim and how he needs to respond. However, it should be noted that the family guidance committee is not authorized, and does not carry the power to hand down judgments without the consent of both parties or force the other party to accept any solution. At this stage, the parties are well within their rights to refuse any settlement offered by the committee.
- Care should also be taken regarding the moral and cultural codes of the UAE while approaching the family guidance committee or any court in the UAE. Both men and women should dress appropriately and in keeping with the cultural norms of the UAE. The family guidance committee and the courts have complete discretion to disallow inappropriately dressed persons from entering the court.
- If both parties attend and no amicable solution is reached, the Family Guidance Committee shall issue a No Objection Letter or Transfer Letter to the claimant. This NOC allows the claimant to file the case in court and start the legal process of divorce.
- If the Parties can reach an amicable solution and are willing to sign a settlement agreement to that effect, it is strongly advised that they seek the assistance of a lawyer at that point. The settlement agreement, in this case, is signed before the judge from the Family Guidance Department and kept in their file for all future reference and two copies are given to the Parties. Both parties must abide by the terms of this settlement agreement so any terms agreed upon between the parties recommended be reviewed by a competent lawyer to ensure that they are in their favour and not detrimental to their interest.
- We have experienced that some parties sign the settlement agreement without taking advice from a specialized lawyer, and this has led to some very serious repercussions for the parties and their future. It is prudent to mention here that such settlement agreements cannot be amended unless both parties consent to the amendment. Below are some of the most common adverse outcomes of signing without a lawyer:
- Some of the agreements are worded in a manner that says "It is agreed that the custody of the children is given to the mother". The husband signs this clause presuming that the custody shall belong to the mother due to the ages of the children (13 for a female child and 11 for a male child).
Firstly, with the above clause, since the father has not restricted the mother's custody of the children based on their age, it is presumed that even after the ages of 13 and 11, the kids shall remain with the mother, since the father has waived his right to custody. This shall limit the father's contact with the child as it is more challenging to get custody following such an agreement.
For more information on what precautions to take or what steps to follow in the event of such an agreement, please contact your lawyer.
- Additional Financial Liability
If the mother retains the custody of the child from the ages of 11 or 13 up to 21 years of age, the father shall be liable to pay the child maintenance for that additional period which could be up to 10 more years, without the complete information from the mother on where the money is spent.
Although according to article 110 of Law No. 28 of 2005, the right of custody cannot be waived, nevertheless, agreement to certain conditions in the settlement agreement makes the claim more challenging as the court is well within its right to refuse the removal of such clauses from the contract.
- Knowledge of Law
Another problem which might surface would be one of the parties claiming that they were unaware of the laws of the UAE as this is a foreign country to them.
This is also why it is recommended that both parties seek sound legal advice before entering into such settlement agreements in the Family Court as it could have a serious effect on their future rights and obligations towards the other party.
Disclaimer:
The introduction of a new personal status law for the non-Muslims effective February 2023, the Federal Decree-Law No. 41 of 2022 on Civil Personal Status, brings with itself numerous changes in terms of marriage, divorce, custody, inheritance etc. Following the issuance of the Abu Dhabi Personal Status Law for non-Muslim Foreigners in 2021, the federal government came out with a Personal Status Law that would apply to the entire non-Muslim population of the UAE, whether citizens or expatriates.
This New Federal Law has introduced changes in personal status matters for non-Muslims in matters related to family guidance mediation, rights between the parties concerning testimony, inheritance, divorce, calculation of time-based on the Gregorian calendar, and joint custody of children. The New Federal Law has introduced civil marriage at a federal level and provided equal rights to parties in requesting the divorce. The New Federal Law covers matters related to alimony, custody, inheritance, and parentage and shall 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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