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December 30, 2020

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From marriage to honor crimes - a user's guide to 2020's legal changes

Several matters of social, personal life will be dealt with based on amendments announced

Dubai: In the UAE, several changes to the country's laws were announced this year. Several decree laws were also announced in 2020, altering the regulations related to personal status, social life, and personal freedoms. Here is a roundup of the biggest changes that will affect you and your life in the UAE.

1. Changes to marriage laws

In November 2020, President His Highness Sheikh Khalifa Bin Zayed Al Nahyan issued a number of presidential decrees amending some articles in the Personal Status Law, the Federal Penal Code, and the Federal Penal Procedural Law. One of the changes to the Personal Status Code stipulated that the laws of the country in which a marriage took place would be applied with regards to the marriage's terms. The earlier provisions applied the laws of each spouse's country of nationality.

Dr Hassan Elhais, legal consultant at Al Rowaad Advocates, spoke about what the changes meant for expatriates as well as UAE nationals.

"Prior to these changes, either party may have requested to apply the law of their nationality in any personal status matter such as maintenance, divorce or custody claim. However, with the recent amendment by Federal Decree Law no. 30 of 2020, the court would now enquire into the law of the country where the parties were married in order to establish whether or not the marriage between the parties is valid. Accordingly, as long as the marriage between non-UAE nationals or a non-UAE national and a UAE national is consistent with the laws of the country where it was concluded or it meets with the conditions provided for by the laws of the country for each of the spouse, the marriage shall be considered valid," he said.

As long as the marriage between non-UAE nationals or a non-UAE national and a UAE national is consistent with the laws of the country where it was concluded or it meets with the conditions provided for by the laws of the country for each of the spouse, the marriage shall be considered valid.
- Dr Hassan Elhais, legal consultant at Al Rowaad Advocates

2. Changes to divorce laws

The recent amendments also similarly affected matters of maintenance claims, after a divorce.

"Now, the laws of the country where the marriage was concluded shall be applied in relation to financial and personal issues resulting from marriage, such as claims for maintenance. In comparison with the repealed provision, the amendments go further to state that matters related to divorce and separation shall be governed by the laws of the country where the marriage was concluded," Dr Elhais said.

Dr Elhais also commented on some other changes to the legislation governing matters between a husband and wife.

"Prior to the amendments, the husband's rights towards his wife demanded the wife's willful obedience towards the husband, among other rights. However, the recent amendment to Article 56 of the UAE Personal Status Law by virtue of Federal Decree Law No. 5 of 2020 has taken a departure from the earlier position by completely repealing this provision and thereby leaving the wife free from this obligation. This is a progressive amendment and a big step towards protecting women's rights and achieving gender equality," he added.

3. Laws regulating buying, distribution and consumption of alcohol

Another change announced in November was Federal Decree Law No. 15 of 2020, which amended some articles of the UAE Federal Penal Law No. 3 of 1987, which regulates the buying, distribution and consumption of alcohol.

Article 1 of Federal Decree Law No. 15 of 2020 states:

  1. No penalty shall be imposed for drinking, possessing, or trading in alcoholic beverages in the conditions and places authorised in accordance with the legislation in force.
  2. Without prejudice to the provisions of Clause (1) of this Article, each Emirate may regulate the use, circulation and possession or trade of alcoholic beverages.
  3. Imprisonment and a fine of no less than Dh100,000 and no more than Dh500,000, or one of these two penalties, shall be imposed on whoever offers or sells alcoholic beverages to any person under (21) years old or buys them for the purpose of serving them to that person. If any of these acts occurred when the perpetrator of the act has ascertained that the age of the person to whom alcoholic beverages were served or sold is no less than (21) years, based on his passport or any other official document, no crime shall be deemed committed.

"The changes mean that consumption or possession or trading alcohol as an action is not a crime for anyone as long as it is practised in authorised locations and in lawful conditions," Ahmed Elnaggar, Managing Partner at UAE-based legal firm Elnaggar & Partners, said.

Elnaggar added that each emirate would still have the freedom to regulate use, circulation, possession and trading of alcohol in light of the law.

"Such legal developments and amendments to federal laws are aimed to develop and enhance the standard of life in the UAE. It reflects the authorities' endeavours to promote tolerance, personal freedom, and openness. UAE residents may have lesser restrictions on their living practices but at the same time, I see it as a higher responsibility towards being part of a safe and healthy community," he added.

Such legal developments and amendments to federal laws are aimed to develop and enhance the standard of life in the UAE. It reflects the authorities' endeavours to promote tolerance, personal freedom, and openness.
- Ahmed Elnaggar, Managing Partner at UAE-based legal firm Elnaggar & Partners

4. Changes to laws related to consensual sex and honour crimes

Another legal amendment announced in Federal Decree Law no. 15 of 2020 was to the UAE Federal Penal law no. 3 of 1987. Among the amended articles was Article 356, where the provisions have been replaced by virtue of Article 1 of the Federal Decree Law, which states in the second paragraph:

Voluntary sexual molestation shall be punished with the same sentence prescribed in the preceding paragraph, if the age of the victim, whether male or female, is less than fourteen years, or if the crime is committed against a person whose will is not considered credible, due to young age, insanity or dementia.

Elnaggar clarified what the article means and how it would affect the lives of people in the UAE.

"What the law describes with the legal expression of 'voluntary sexual molestation' is the same thing as what is widely expressed as 'consensual sexual act", which is not going to be punishable by imprisonment unless certain conditions occur. The law defined these conditions with age - if less than 14 years old - or if one of the involved is not considered credible due to insanity or dementia or whoever has obvious difficulty thinking, remembering and reasoning," he said

"As a consequence of the amendment in the law, unmarried couples are no longer in default of the UAE regulations and they can freely live together in the same place, as long as both are adults and enjoy a healthy mind, and reasonable behaviour. Public morals remain at the forefront of the UAE legislators and the amendment's aim is to regulate the life of UAE residents in the spirit of acceptance and tolerance," he added.

Legal experts Gulf News spoke with also stressed on the changes that were made to protect victims of 'honour crimes'. Jihene Arfaoui, in-house legal adviser at Danube Group, spoke about the new changes.

"The amendments were made to Article 344 of the Penal Code, related to the so-called 'honour crimes'. This Article punished by temporary imprisonment anyone who was surprised by seeing his wife, daughter or sister committing adultery and killed her or killed those who committed adultery with her or killed both of them. Similarly, the wife who was surprised by seeing her husband in the crime of adultery in the matrimonial home was punished by temporary imprisonment if she killed him or the individual who committed adultery with him or killed both of them at once. According to the new amendments, this crime will be treated as a murder crime and will be punished by the relevant legal articles in the Penal Code," Arfoui said

"This is an important change of law, which ensures the UAE's commitment to protecting women's rights and ensuring the rule of law," she added.

5. Equal pay law

Another big announcement in the UAE's laws in 2020 was the 'equality of wage' provisions, in Federal Decree Law No. 6 of 2020 dated August 25, 2020, which ensures that both men and women are paid the same salary for similar work.

Article 32

The female worker shall be granted a wage equal to that of the male worker should she be performing the same work, or another one of equal value. By virtue of a Cabinet Decision - based on the proposal of the Minister of Human Resources and Emiratisation - the procedures, controls and standards necessary to evaluate the work of equal value.

Arfoui explained that the wage or remuneration mentioned in the law entails more than a basic wage, it refers to all the allowances and earnings that an employee may receive.

"In addition to wages, forms of remuneration include overtime pay, bonuses, travel allowances, company shares, insurance, and other benefits. A basic wage is a small part of a worker's full compensation, so it is important to factor all forms of pay into the equation," she said.

"According to a World Economic Forum report published earlier this year, the UAE leads the region's countries in bridging the gender pay gap. These amendments reflect the economic, cultural, and social orientation adopted by the UAE and aim at consolidating the UAE's commitment to providing a legislative environment compatible with multiculturalism, and a commitment to building a competitive and safe social and economic environment," she added.

These amendments reflect the economic, cultural, and social orientation adopted by the UAE and aim at consolidating the UAE's commitment to providing a legislative environment compatible with multiculturalism, and a commitment to building a competitive and safe social and economic environment.
- Jihene Arfaoui, in-house legal adviser at Danube Group

6. Expatriates allowed to own 100 per cent of UAE-based LLCs

Another major announcement made in November 2020 was the decision to allow foreign investors 100 per cent ownership of limited liabilities companies (LLCs). Hani Naja, Partner Corporate and Commercial at Baker McKenzie Habib Al Mulla, spoke about how the announcement in 2020 was preceded by earlier changes to the UAE's legislation.

"The push for a relaxation in foreign direct investment in the UAE started a number of years ago," Naja said.

"The first major change was in September 2018, with the issuance of the Foreign Direct Investment Law (FDI Law) which opened up the UAE market to foreign investors in certain sectors of the economy. The FDI law was then followed by the announcement on July 2019 of a Positive List of 122 business activities where foreign investors can own up to 100 per cent of the shares in an onshore company. The Positive List focused on the manufacturing, agricultural and services sectors," he added.

The announcement in 2020 was the second major change, according to Naja, with the amendment of the Commercial Companies Law (CCL), which was the main law limiting foreign ownership to 49 per cent.

"The amendment of the CCL rendered the FDI Law obsolete as the UAE moved from a principle of continued restriction but with a Positive List (under the FDI regime), to a complete liberalisation across all sectors and activities and emirates with a soon-to-be-announced list of strategic sectors where limited restrictions may apply. The amendments were put into effect on December 2, 2020, and the list of strategic sectors under the new Article 10 of the CCL should be issued and brought into effect six months after," he added.

The amendments were put into effect on December 2, 2020, and the list of strategic sectors under the new Article 10 of the CCL should be issued and brought into effect six months after.
- Hani Naja, Partner Corporate and Commercial at Baker McKenzie Habib Al Mulla

What are the changes?

Acording to Naja, under the revised CCL, the following changes would take place:

  • Foreign shareholders (including single shareholders) can own up to 100 per cent of any company in the UAE except special-status companies with government ownership and companies operating the strategic sectors referred to above; and
  • Branches of foreign companies do not need a UAE national as the local service agent anymore.

7. Changes to maternity and paternity leaves

Another Federal Decree law announced in 2020, which would impact the lives of private sector workers in the UAE, was Federal Decree Law No. 6 of 2020, which stipulates that a private sector employee will be granted a paid parental leave for five working days to look after his baby, effective from the baby's date of birth until the child is six months old.

Mohamed Elmasry, Junior Associate at Al Suwaidi and Company, Advocates and Legal Consultants, said that according to the Ministry of Human Resources and Emiratisation (MOHRE), Article 74 of the law regarding parental leave applied both the father and the mother.

"Women in the private sector already get 45 days of maternity leave, and this additional parental leave now allows them to avail a total of 50 days of leave. These five days can also be applied for by fathers," Elmasry said.

"UAE always aims to keep pace with the advancement and the evolution of all aspects of life by modernising and amending laws. Article 74 on Parental Leaves has been inculcated into the UAE Labour Law in order to enhance the capability and potential of working parents to balance between their work life and family time," he added

Article 74 on Parental Leaves has been inculcated into the UAE Labour Law in order to enhance the capability and potential of working parents to balance between their work life and family time.
- Mohamed Elmasry, Junior Associate at Al Suwaidi and Company, Advocates and Legal Consultants

8. Harassment Laws

In September 2020, the Federal Law No. 15 of 2020 was issued, in which strict penalties were announced for incidents of harassment in public places. According to the law, any person who molests a female by words or by action in a public place shall be subjected to imprisonment of a maximum of two years and a maximum fine of Dh100,000 or either.

Hari Wadhwana, Associate at OGH Legal said that this provision would also apply if a man would enter into a place, which is allocated strictly for women. "To further strengthen the guard on public harassment, Article 360 of the amendment provides that whoever is found on a public road committing obscene act by words or action shall be subjected to a maximum of six months and a fine of a maximum of Dh100,000 or either. The interesting issue of this amendment is that this makes no differentiation between a male or female committing an obscene act. Again, this amendment reinforces the principal of equal treatment with everyone," Wadhwana said.

"Lastly, any individual who makes an appeal, sings, yells or makes speeches that are immoral and obscene, shall be subjected to punishment of a maximum of one month and a fine of a maximum Dh100,000 or either. This amendment provides further protection to the people in UAE, especially women, to make the country a safe and hospitable place to reside in. The amendment is a deterrent from committing an obscene act as a guilty individual may be exposed to prolonged imprisonment along with a heavy financial loss by way of a fine," he added.

9. Suicide

According to the new changes, the court is given the discretion to send a person convicted of attempting suicide to a treatment institution instead of punishing them. However, a person assisting in any mean another person to commit suicide will be punished by jail term.

"Keeping the individual's mental state in mind, the amendment allows the court to refer the person to a healing center instead of a traditional punishment of imprisonment. The idea behind this is to implement a reformative punishment and not a deterrent punishment. The amendment allows the individual to transform and be part of society, instead of punishing the individual to jail for attempting to commit suicide. It attempts to assist and help the individual to find reasons to live instead of giving up on life," Wadhwana added.

The amendment allows the individual to transform and be part of society, instead of punishing the individual to jail for attempting to commit suicide. It attempts to assist and help the individual to find reasons to live instead of giving up on life.
- Hari Wadhwana, Associate at OGH Legal

10. Act of good faith

Wadhwana also spoke about how the Federal Law No. 15 of 2020 put in place protections for individuals who may wish to help others, without any worry of being found legally liable.

"For example, when an individual is involved in an accident a passerby may assist this individual to the hospital. In this pursuit, if the individual gets hurt, he or she may try to prosecute the passerby for his actions. The amendment provides that any person doing an act in good faith - which may hurt another [person] while trying to help them in situations that require urgent intervention to save life, or prevent or mitigate damage - shall not be guilty of committing a crime," Wadhwana said.

"The amendment allows individuals to help each other and strengthen societal ties without the fear of being prosecuted for any damage that may occur while helping someone else," he added.

The amendment allows individuals to help each other and strengthen societal ties without the fear of being prosecuted for any damage that may occur while helping someone else.
- Hari Wadhwana, Associate at OGH Legal

11. Making interpreters available for non-Arabic speakers

Another major legislative change in 2020 took place through Federal Decree Law No. 28 of 2020, with respect to changes to victim's privacy laws, providing them with greater judicial protection and support. According to Jihene Arfaoui, the amendment stipulated that judicial officers and investigation entities shall not disclose any information about the victim, except in very specific circumstances. The law also mentions that the judicial officer shall seek the assistance of a translator in case the accused person or the witness or the expert do not know the Arabic Language, and such translator shall sign on the report.

"The legislator allows the accused, witness, or expert who does not speak Arabic - the official language of the United Arab Emirates - the right to know the contents of the report, and this supports the principle of transparency of judicial procedures. In addition, the legislator has once again supported the principle of protecting personal data and the privacy of the accused or witness, by making him understand and verify the content of the record that contains information related to him," Jihene said.

The legislator allows the accused, witness, or expert who does not speak Arabic - the official language of the United Arab Emirates - the right to know the contents of the report, and this supports the principle of transparency of judicial procedures.
- Jihene Arfaoui, in-house legal adviser at Danube Group

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