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May 25, 2022|
In Part III of our series on family law-related issues for expatriates in the UAE, we turn our focus to the matters related to child custody, child relocation and abduction, and inheritance, as governed by the UAE laws.
Custody and Guardianship
Under the UAE Personal Status Law of 2005, there is a difference between a custodian and a guardian. A custodian is the one who has the physical safekeeping of the child whereas a guardian has the legal or moral custody. A mother is the natural custodian of the child under the UAE Personal Status Law with the father being the guardian.
Usually, the mother does not lose custody unless she is unfit to take care of the child or she puts the child’s life at risk. Similarly, guardianship is unlikely to be taken from the father unless he has committed sexual crimes, including towards his children or has been detained for more than a year. The physical custody is with the mother till the boy turns 11 years old and the girl turns 13 years old if there are no circumstances which affect the interest of the child. The governing rule in determining custody cases is the best interest of the child.
On the contrary, following the provisions of the new Federal-Decree Law No. 41 of 2022 On Civil Personal Status, which applies to the non-Muslims in the country, custody is shared equally between the parents, and there is no distinction between custodian and guardian. Also, either party can move an application to the court to waive their right to custody or exclude the other from joint custody. Non-Muslims in the UAE also have the option to apply the laws of their home country if they do not want to be governed by the new law.
Under the UAE Personal Status Law of 2005, the child cannot be relocated out of the UAE without the written consent of both parents. If the custodian (mother) wants to relocate the child out of the UAE, the guardian (father) would need to approve it.
Even a short visit would require the guardian’s permission. In case the guardian refuses to give consent, the custodian has the right to raise a request to the family courts, which will decide on the request. That said, the Dubai cassation courts have held that the freedom to travel is a constitutional right of every person in the UAE and this right will not be restricted unless a valid reason is provided.
Practically, the court issue approvals for short visits even if the husband has not agreed, provided some guarantees, in the form of a passport of a guarantor, are submitted to the court. The guarantees to be provided are based on the discretion of the courts.
The rules regarding the relocation of children are similar for non-Muslims to the extent of requiring approval from both parties. Going by the provision of Article 15 of Federal Decree-Law No. 41 of 2022, if there are no special provisions in the new law on a certain issue, it will be governed by the existing laws in place.
Child abductions do happen in family dispute cases and typically are either through abduction out of the UAE or into the UAE.
If the parents are UAE residents and one parent abducts the child from UAE to another country, the resident parent first has to apply for a custody claim before the UAE courts. Once the parent obtains the custody court order, they may then file a criminal case for child abduction before the UAE courts, followed by filing a request to Interpol for extradition.
When a child has been abducted from another country into the UAE, there are several considerations to keep in mind. One option that could be considered is filing an urgent application before the UAE courts to deliver the child back to the parent if the child is young and abducted from abroad into the UAE. UAE is not a part of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and therefore applies its laws in child abduction matters. The UAE courts are proactive and likely to decide on the case within a few days.
If the wife has child custody through a court order in a foreign country, she may file a criminal case before the UAE courts or request the courts to recognize the foreign court order giving her custody. The UAE can enforce a foreign judgment provided that it is not against the public policy of the UAE.
Inheritance is one of the key issues for expatriates who are settled in the UAE. The UAE Personal Status Law of 2005 continues to govern the inheritance procedures for Muslims, whereas inheritance for non-Muslims in the country is governed by Federal Decree-Law No. 41 of 2022 On Civil Personal Status, irrespective of whether they are citizens or expatriates. However, expatriates can still choose to apply the laws of their own country or choose to apply other laws in force in the UAE.
As for the UAE Personal Status Law of 2005, the primary heirs, such as the spouses, children, parents, grandparents, siblings etc. are given priority, but the number of shares differs, under different circumstances. Moreover, a person can only bequeath one-third of his estate, and the estate will devolve once the funeral costs, unpaid debts and will of the deceased have been determined.
On the other hand, under Federal Decree-Law No. 41 of 2022, a person can bequeath all the estate in UAE to one person, or if there is no will, the estate will devolve upon the heirs without distinction between males and females.
This concludes our discussion on the federal laws applicable to personal status matters in the UAE.
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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