family law

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September 20, 2014

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Source: Expat Echo - Marriage Dissolution

The dissolution of a marriage is a legal action that may not coincide with the emotional tearing apart. Divorce is typically a painful process for all concerned. While it can take adults time to regain psychological equilibrium, there is also a threat to be involved in a court proceeding claiming compensation for children’s maintenance and support. However different jurisdictions have different solutions to the issue. In this article, we will answer the question as per the Dubai and UAE Laws.

Introduction

The Dubai courts have three divisions: civil, criminal and Shari‘a courts. They are further divided into separate courts. The family courts deal with personal status matters, the civil courts deal with civil and commercial issues and contractual matters, and the criminal courts of course with criminal matters.

In terms of applicable legislation, the legislation governing marital relations within the UAE is primarily governed by Federal Law No. 5 of 1985 (Civil Code), Federal Law No. 28 of 2005 (Personal Status Law), and the Federal Law No. 41 of 2022 (Civil Personal Status). The Personal Status Law is based on the Islamic principles of Sharia, and governs the Muslim population of the country, whereas the Civil Personal Status is based on internationally accepted customs and practices, and comes to apply to the non-Muslims of the UAE unless they choose to be governed by some other laws enforced in the country or the laws of their own country.

Child Custody and Maintenance (Personal Status Law)

Under articles 78, 148 and 155 of the Personal Status Law, a mother would have custody of children upon divorce until the boy is 11 and the girl is 13 years of age. After this, custody could revert to the father, if he applies for it.

Child maintenance includes all financial costs that the mother would incur to care for a child, for example, the provision of accommodation, food, children’s clothing, travel, and a maid. Regardless of the wealth of the mother, this would still be payable to the father.

The court would consider the father’s income, and the children’s needs, and make an appropriate order; this is usually a third of the father’s income. The Dubai courts have considerable powers for the enforcement of child maintenance orders, for example, attachments of earnings, seizure of goods, investigation of bank accounts etc.

Regardless of whether the mother or father has custody of a child, it is never possible for a father to claim child maintenance from the mother. The father is always the legal guardian of a child under the Personal Status Law, and part of his role as a guardian is to have financial responsibility for the child.

Child Custody and Maintenance (Civil Personal Status)

Under article 10 of the Civil Personal Status, the mother and the father share equally the custody of the children, and there is no major distinction between guardianship and custody. This implies that both parents are responsible for raising the child, unless the court, through an application, feels that any of the parents is ineligible to take care of the child, would fail to meet his needs, or would expose the child to danger. In such cases, sole custody of the child may be granted to the parent who moved such an application to the court against the other parent.

As per article 9(7), the father is responsible for providing financially for the child while they are in the mother’s custody, for a period of up to 2 years, after which it shall be left to the court to decide. 

Wife Rights (types of claims under the Personal Status Law)

Firstly, the compensation called Nafket Motaa, is a claim by the wife for up to one year's worth of expenses to cover her ‘moral damage’ resulting from a divorce given by the husband without her consent.

The second is for the wife to claim reimbursement of backdated expenses for up to the last 36 months for not supporting financially. 

Thirdly is the financial claim that the wife could make from the husband for him to support her financially for the three months after the divorce, which is the ‘waiting period’. The waiting period is to ensure that a wife is not pregnant following the divorce.

Wife Rights (under the Civil Personal Status)

The divorced woman can move an application to the court under article 9 of the Civil Personal Status, to receive alimony from her ex-husband. This amount will be forfeited if she marries another man or if she no longer remains the custodian of the children, and this amount is decided based on:

  1. number of years of marriage
  2. age of the wife
  3. the financial status of each spouse
  4. the extent to which the husband contributed towards the divorce
  5. compensation by either spouse due to moral damage
  6. financial damage resulting from unilateral divorce
  7. whether the wife was diligent in taking care of the children

Division of Assets

Either party may claim a share of any jointly owned assets or a share of any assets to which they assert that they contributed. This claim is irrespective of marriage or divorce; it is a contractual claim. Unless there was evidence to the contrary, the court would order the sale and division of any jointly owned property or division of any jointly owned bank accounts.

Alternatively, if the parties had entered into an agreement outlining the division of assets on divorce, either party could apply to the court to enforce that contract under civil law. Either party’s claim against jointly owned property or property specified in a written agreement would be restricted to property located within the UAE.

Conclusion

It can be seen that UAE laws are clear about compensation amounts and compensating parties upon the dissolution of the marriage.

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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