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April 20, 2022
This question is often raised by couples who are planning a divorce and hence are concerned to protect their individual assets in a judicial separation proceeding. The questions involving family law are quite complex, especially due to the multitude of expat populations having residence in the country, which possibly invites the application of various national laws in a matter of judicial separation. The UAE is home to 8.84 million, which constitutes approximately 89 per cent of the total population of the country and belong to various nationalities and include amongst other South Asians, Europeans etc.
Keeping in mind the complexities involving the application of personal law of various nationalities in the UAE, the country has affected many changes in adapting to a more progressive personal law. One such major change has been the introduction of the federal law number 30 of 2020 (the “New Decree”), amending the Federal Law Number (5) of 1985 (the ‘Civil Transactions Law’) and the Personal Law Number (28) of 2005 amongst others. The new decree completely replaces articles 12, 13, 18 ,19, 20 ,21,23,24,25 and 1116 of the civil transactions law and have introduced crucial changes to the personal laws, especially concerning the ‘choice of law’. Previous to the changes, the nationality of the couple determined the applicable law; however, with the new amendment, the law of the state where the marriage took place would govern the validity. Further, with the new amendment, the financial and personal effects resulting from a contract of marriage will also be governed by the law of the state where the marriage was contracted. The previous position was that the law of the husband's nationality at the time of conclusion of the marriage would have applied. Nevertheless, the new changes now open up wide application of different foreign laws before a UAE court with much onus on the judiciary to adjudicate and interpret the foreign laws rightly while determining family matters.
Essentially translating the legal provisions detailed above, in matters of contested divorce for expats the applicable law that governs asset division upon separation essentially could be the law of the country where the marriage was contracted. This rule is thus not definite in itself and many other provisions may apply in addition to the same. For instance, in the emirate of Abu Dhabi, a new decree law on ‘Personal status for non-Muslims in the emirate of Abu Dhabi’ has been enacted regulating personal status matters for non-Muslims in the emirate (hereinafter “Abu Dhabi Decree”). The new decree applies to any Non-Muslim foreigner, whether it be a male or female, who has his or her domicile, or place of residence or place of work in the emirate of Abu Dhabi. Further, pursuant to article 3, the Abu Dhabi decree the provisions of the said decree shall apply to foreigners with residence in the said emirate unless they request for the application of the law of their home country. In such instances, if such a request is made before the court, then the court could apply such foreign law.
Pursuant to the Abu Dhabi Decree Law, the Financial rights out of divorce shall be governed as per the following rules (Article 8):
The process concerning family matters can become needlessly complicated for ex-pats living in the UAE, especially if proper legal guidance is not sought. Seeking early intervention and legal expertise from an experienced lawyer for divorce, can provide you with the reassurance that your best interests will be looked after. It is essential that legal advice is sorted from lawyers with an established practice specializing in family laws. The experience of having handled international family law cases before the UAE courts would be an added advantage. It is essential that you rely on a law firm with strong expertise, as family matters can often be an emotionally challenging experience, and hence the same is best left to the experts alone.