Introduction
Divorce is a significant legal process that involves the dissolution of the marital relationship, division of assets, child custody arrangements, and financial obligations. In the United Arab Emirates (UAE), divorce proceedings are governed by various laws, including the Federal Law No. 28 of 2005 (Personal Status Law) for Muslim marriages and Federal Decree-Law No. 41 of 2022 on Civil Personal Status for Non-Muslims in the UAE, along with Abu Dhabi Law No. 14/2021 for non-Muslims in the Emirate of Abu Dhabi. This article aims to provide an overview of the difference between the divorce decree and the marital settlement under UAE law, taking into account the legal implications for both Muslim and non-Muslim couples.
The Divorce Decree:
The divorce decree refers to the official court order issued by a competent judicial authority that terminates the marital bond between spouses. In the UAE, family matters, including divorce cases, are primarily adjudicated by the Shari'a courts. A divorce decree is granted by the court based on grounds specified reasons such as desertion, abuse, or other legitimate reasons recognized by the court
The divorce decree has legal consequences, primarily ending the marital relationship and, in many cases, affecting other related matters, including child custody, financial support, and property division. While the divorce decree signifies the dissolution of the marriage, it does not necessarily address the various issues that arise from the termination of the relationship.
The Marital Settlement:
Unlike the divorce decree, the marital settlement focuses on resolving the ancillary matters arising from the divorce. It is an agreement between the divorcing parties that addresses various aspects, including child custody, visitation rights, spousal maintenance, division of assets, and any other financial obligations. The marital settlement aims to provide clarity and a mutually agreed-upon framework for the practical aspects of post-divorce life.
For Muslim Couples:
When approaching the family court for divorce, three types of reconciliations can occur for Muslim couples
Agreement to Continue Marriage Without Divorce: According to Article 16 of the UAE Personal Status Law, Muslim couples have the option to agree to continue their marriage without dissolution. In this scenario, the couple agrees to reconcile and continue their marriage without seeking a divorce. This may occur through a marital agreement or a settlement reached through the family court. In such cases, the court provides a settlement without issuing a divorce decree.
Agreement to Divorce with Specific Terms and Conditions: If the couple agrees to divorce with specific terms and conditions, the court grants a divorce decree along with an agreement. This agreement addresses matters such as child custody, visitation rights, spousal maintenance, and the division of assets. Both the divorce decree and the agreement are issued by the court. This option provides a comprehensive resolution as both the divorce decree and the agreement are obtained together.
Divorce without any Marital Settlement: In this scenario, the wife only gets a divorce decree without any specific terms or conditions or any marital settlement based on the mutual consent of the couple.
For Non-Muslim Couples:
Non-Muslim couples in the UAE have specific laws governing their divorce proceedings:
Divorce and Marital Settlement for Non-Muslim Couples in the UAE
The Federal Decree-Law No. 41 of 2022 enables either spouse to seek divorce unilaterally without the need to prove fault or blame the other party. It is sufficient for one spouse to express their desire for separation before the court, leading to the issuance of a divorce judgment. Similarly, according to Abu Dhabi Law No. 14/2021, divorce is considered the termination of the marriage contract by the unilateral will of a spouse, and it does not require the demonstration of fault or damage.
According to Decree-Law No. 41 of 2022, divorce cases filed by non-Muslim couples are excluded from referral to family guidance committees. The law allows either spouse to file for divorce without the need to prove damage or justify their application. Divorce becomes effective upon the court's judgment and subsequent notification of the other party.
Marriage and Divorce Proceedings (Decree-Law No. 41 of 2022 and Abu Dhabi Law No. 14/2021) Under both laws, non-Muslim couples enter into marriage by completing a designated form before an authentication judge. The marriage contract may include conditions agreed upon by both spouses, including rights and obligations during the marriage and post-divorce phase.
Financial Support Upon Divorce (Decree-Law No. 41 of 2022 and Abu Dhabi Law No. 14/2021), laws address the issue of financial support for the divorced spouse. After the issuance of a divorce judgment, a divorced woman can apply for alimony from her former husband. The court has the discretion to determine the amount and duration of alimony based on factors such as the duration of the marriage, the age of the wife, the economic status of each spouse, contributions to the divorce, and any material or moral damages suffered. Amendments to alimony can be made annually or in response to changes in circumstances.
Joint Custody of Children (Decree-Law No. 41 of 2022 and Abu Dhabi Law No. 14/2021), Both laws recognize the importance of joint custody in child custody matters. Non-Muslim parents, regardless of gender, have an equal right to joint custody of their children after divorce until they reach the age of eighteen. The principle of joint custody aims to ensure the child's well-being and minimize the negative effects of divorce. In case of disputes related to joint custody, either parent can submit an application to the court for resolution.
Decree-Law No. 41 of 2022 on Civil Personal Status for Non-Muslims in the UAE and Abu Dhabi Law No. 14/2021 provide legal frameworks for non-Muslim couples seeking a divorce. While both laws share common principles regarding divorce procedures, financial support, and joint custody
Conclusion:
In the UAE, divorce proceedings are governed by the Federal Law No. 28 of 2005, known as the Personal Status Law, which applies to Muslim marriages, and Federal Decree-Law No. 41 of 2022 on Civil Personal Status and Abu Dhabi Law No. 14/2021 for non-Muslim marriages. The divorce process involves two distinct components: the divorce decree and the marital settlement. The divorce decree terminates the marital relationship, while the marital settlement addresses ancillary matters arising from the divorce. Understanding the distinction between the divorce decree and the marital settlement is crucial for individuals navigating divorce proceedings in the UAE to ensure their rights and interests are protected within the boundaries of the applicable law.
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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About the Author
Dr. Hassan Elhais publishes analysis of UAE family law matters, including divorce, separation and related family-law questions. For readers researching divorce 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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