Written by Dr. Hassan Elhais Introduction
In the second part of the guide through family court proceedings, we shall be outlining some of the common mistakes made by parties while entering into settlement agreements due to the absence of a competent attorney and sound legal advice.
Under Federal Law No. 28 of 2005, following a No Objection Certificate from the Family Guidance committee, the parties can file their family case in the Dubai Courts.
We have experienced that some parties sign the settlement agreement without taking advice from a specialized lawyer, and this has led to some very serious repercussions for the parties and their future. It is prudent to mention here that such settlement agreements cannot be amended unless both parties consent to the amendment. Below are some of the most common adverse outcomes of signing without a lawyer:
Some of the agreements are worded in a manner that says "it is agreed that the custody of the children is given to the mother". The husband signs on this clause presuming that custody shall belong to the mother due to the ages of the children (13 for a female child and 11 for a male child) because the children are under age.
The two major problems are:
Firstly, less access to the child with the above clause, since the father has not restricted the mother's custody of the children based on their age, it is presumed that even after the ages of 13 and 11, the kids shall remain with the mother, since the father has waived his right to custody. This shall limit the father's contact with the child as it is more challenging to get custody following such an agreement.
For more information on what precautions to take or what steps to follow in the event of such an agreement, please contact your lawyer.
Secondly, additional financial liability; if the mother retains the custody of the child from the ages of 11 or 13 up to 18 years of age, the father shall be liable to pay the child maintenance for that additional period, without the complete information from the mother on where the money is spent.
Although according to article 110 of Federal Law No. 28 of 2005, the right of custody cannot be waived, nevertheless, agreement to certain conditions in the settlement agreement makes the claim more challenging as the court is well within its right to refuse the removal of such clauses from the contract.
Knowledge of Law; another problem which might surface would be one of the parties claiming that they were unaware of the laws of the UAE as this is a foreign country to them.
This is also why it is recommended that both parties seek sound legal advice before entering into such settlement agreements in the Family Court as it could have a serious effect on their future rights and obligations towards the other party.
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.
There is no mandatory mediation in the family matter before the commencement of the court case. The Divorce cases shall be excluded from being considered by family guidance committees and shall be directly referred to the Court to issue a judgment in this regard from the first session. If the New Federal Law was applied, the divorce could be given to any of the parties based on a no-fault divorce in the first court hearing where none of the parties may be required to provide any reason for the divorce. To know more information about this law, please feel free to click this link.
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