Written by Dr. Hassan Elhais The vast deserts, the bustling cities, and the enormous skyscrapers of the United Arab Emirates eclipse the comprehensive legal system that accounts for the everyday workings of daily life. For those living in the country and those that understand the ins and outs of the system, it is a magnificent organism that details the protection of its inhabitants.
One area of law unbeknownst to many civilians around the world is the custodial aspect of family law in the U.A.E. Similar to countries all over the globe, the end, and most important, goal in custody battles is the best interests of the child. Custody laws in the U.A.E. are fraught with mentions of the child's best interests.
As per the newly enforced Federal Decree-Law No. 41 of 2022, the new personal law for non-Muslims, parents are required to contribute equally towards raising their kids, unless one of them disputes the same. Whereas, the Federal Law No. 28 of 2005 On Personal Status assigns different roles to mothers and fathers. These differences are most often seen in the descriptions of guardians and custodians.
A guardian of a child financially maintains the child, makes important decisions about the child's education and upbringing, and generally takes care of the child's affairs. The custodian, on the other hand, is concerned with the child's day-to-day life; the custodian has actual, physical custody of the child and must raise, take care of, and up bring the child. This separation between custodian and guardian is not definitive, for one parent can play both roles. Most often the mother is awarded custody, whereas the father is always considered the guardian; however, under both personal laws, custody is dependent on the child's best interests.
In divorce cases governed by the UAE Personal Status law of 2005, generally, it is the mother who wins out in the U.A.E. regarding custody of the child. Again, since the courts of law are only concerned with the child's best interests, mothers are not awarded custody when they are deemed unfit. The custodian needs to fulfil a list of obligations, including being of sound mind, honest, mature, capable of raising a child, free of infectious disease, and not sentenced to a serious crime.
If a parent contradicts any of the aforementioned conditions, the laws indicate that the child must be placed with the one that will seek the child's best interests. These factors may even be taken into consideration while deciding custody under the non-Muslim Civil Personal Status Law. Certain laws even specify that a custodian must be of the same religion as the child; nevertheless, courts must not adhere to that condition if the interests of a child are best served by a custodian of a different religion.
Although divorces and custody battles are messy, the comprehensive laws in the U.A.E. attempt to cover as many situations as possible, and it is essential in their practical use to centre the issue on what is best for the child. For example, Article 156 of Federal Law No. 28 of the year 2005 (UAE Personal Status Law) states that the custody of a child should go to the mother, until 11 years of age for a boy and 13 years of age for a girl. In that same clause, the law sets out that this circumstance can change if the court determines something else is best for the child.
A recent case concerning child custody reached the Supreme Court of Abu Dhabi. In this case, the child, a young girl of 13 years of age, who lived with her mother, the custodian, was to be returned to the guardian, her father, under Article 156, mentioned above. After months of trials, hearings, and appeals, the Supreme Court of Abu Dhabi did not grant the father custodianship.
Though this goes against Article 156, the court found it would be in the best interests of the young girl to stay with her mother until she is married. It is clear that legally and practically speaking, the goal is the same, custody is awarded to the parent that best fits the needs of the child’s best interests.
The United Arab Emirates may be a vast wonderland to some, but to others, it is a paradise on Earth. The laws of the U.A.E. seek to protect the inhabitants, and most importantly children, in every way imaginable. These laws are laced with concern for the child's well-being, and everything centres on what will be the best for him or her. The strict protection of a child's best interests is just one of the many gems in the vast Emirati desert.
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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