Divorce is indeed a very delicate matter, and if children are involved, it should be dealt with with the utmost care and consciousness. Family Lawyers of Dubai herein wish to address this reoccurring issue of custody of the child or children, should the mother re-marry following UAE Shariah Law.
The very concern of this article is to understand the circumstances where the custody held by the mother can be challenged by the father if she re-marries. UAE Law gives several rights and obligations to the parents concerning their children. In usual circumstances, the father is always considered the guardian, whereas the mother is given custody of the children.
Notwithstanding the foregoing, Courts of UAE will still pass a judgment bearing in mind the best interest of the child as per Article 144 of the Federal Law Number 28 of 2005 regarding Personal Status Law (the Personal Status Law) which is stated here under:
If the custodian is a mother:
- She should not get married to a foreign husband who has consummated the marriage with her unless the court decides otherwise in the best interest of the child;
- Must unite with the child’s religion.
If the father is the custodian:
- He must have a female qualified to have custody;
- He must be an unmarriageable relative of the child if the child is female;
- He must be of the same religion as the child.
In line with the preceding, the guardian is responsible for the upbringing of the child, whereas the custodian shall maintain regular daycare. In this regard, all major decisions regarding the child’s education, finances or residence shall be taken by the guardian in consonance with the custodian.
Generally, custody is granted to the mother for a girl below the age of 13 years and a boy of 11 years of age. Nevertheless, the court may extend the care of the children or may transfer it to the guardian, depending upon the circumstances of the case and the child’s best interest.
It is pertinent to note that the mother (custodian) shall maintain custody even post-remarriage until the father (guardian) files the case for custody. Another significant provision Article 146 (6) allows the mother to retain the custody of the children during the trial, until the judgment, the article reads as follows:
The mother shall have the right to her children’s custody in case of a dispute over the custody unless the court decides otherwise for the child’s interest.
Lastly, even if the mother re-marries, she does not automatically lose custody of the child as per Article 152 of the Personal Status Law. It is apposite to consider that the court has been given utmost discretion to act in the child’s best interest in any given circumstances.
Therefore, even in cases of re-marriage, the judge may allow you to retain custody of the child if they are convinced that it is in the child’s best interest. Besides, your ex-husband shall file the case for custody within six months from the date of knowledge to seek custody of the child, unless there are reasonable grounds for failure to file the custody claim.
Legal Update:
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.
The New Law provides Joint Custody and men and women shall have equal rights of custody of children until the age of 18 and subsequently the child shall have the freedom of choice. Either of the parent may request to remove the other parent who has subjected the child to an inappropriate environment, and other situations, which will be provided exhaustively in the implementing executive regulations. In the event of disagreement between the parents, they may approach the court to decide concerning custody matters. The child’s best interest remains the governing rule in custody disputes. To know more information about this law, please feel free to click this link.
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About the Author
Dr. Hassan Elhais publishes analysis of UAE family law matters, including family disputes, legal proceedings and the issues that shape family-law decisions. For readers researching family lawyers in Dubai, his writing offers insight into the legal questions surrounding these topics. Explore his published work and practice-area information for further context.
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