Looking to resolve your family dispute? We've asked Dr. Hassan Elhais, Legal Consultant in Dubai, on what you must know about the UAE's family law
1 November 2022| Last updated on 2 November 2022
This is Part II of an on-going series of UAE Family Law guides.
Expatriates have enjoyed living in the UAE for many years but often do not understand the application of the UAE laws on them. In this article, we asked Dr. Hassan Elhais, a professional legal consultant in the UAE, about the laws applicable to family matters in the UAE and its implications for foreign expats.
In a previously written article on family laws in the UAE, we've already discussed the overall personal status laws applicable in the UAE, the courts’ jurisdiction on foreign residents in the UAE, and the types of divorces recognized in the UAE.
In this guide, Dr. Elhais helps us understand the application of foreign law in personal law matters in the UAE and the types of claims usually seen in divorce matters, and further we will turn our focus to the matters related to child custody, child relocation and abduction, and inheritance, as governed by the UAE laws.
Application of Foreign Law
It is obvious that expats may want to apply foreign law in the UAE for their personal matters. The application of the foreign laws is subject to two main rules:
- The law of the State where marriage was concluded (Article 13). As an example, if citizens of India concluded their marriage in UK, the law of UK will apply.
- Dual nationality of the party (Article 24). If a party has dual nationalities, the courts may reject the application of foreign law and UAE law may become applicable even if the marriage was concluded abroad.
The courts exercise discretionary powers while considering the application of foreign laws, based on the merits of individual cases.
In case the divorce has been granted, a wife is entitled to claim certain financial rights. These rights are given in accordance with the UAE laws. Some of these rights could be as follows.
A.) Dowry (Mahr)
It is an amount which is agreed between the parties at the time of marriage and is of two types: (i) prompt dowry (mokadam), which is paid at the time of marriage; and (ii) deferred or late payment (moajal), which is written in the contract. The deferred payment is payable at the time of divorce.
B.) Compensation for divorce (nafket motta’a)
Compensation is to be given to the wife in case the divorce was issued to the wife by the husband with no valid ground. According to the UAE Personal Status Law, compensation amount will not be given to the wife if she was an applicant in the divorce proceedings.
C.) Reimbursement of backdated expenses
In case the husband has not financially supported the wife, the wife has the right to claim back-dated expenses which is equivalent to the wife’s day to day expenses for the last 36 months. If the wife claims such expenses, the husband would have to prove that he had financially supported the wife. If case of failure to prove such support, the court may order the husband to pay such amounts to the wife.
Maintenance can be claimed by wife during marriage, during the waiting period (iddah) and for the children. She also has the right to seek custodian salary.
A wife has a right to claim maintenance support from the husband, subject to the financial ability of the husband. However, a husband cannot claim maintenance.
The right to claim child support from the father is established under Article 78 of the UAE Personal Status Law. Both Emirates of Dubai and Abu Dhabi have their own guidelines on the amount to be given as child support, which depends on the number of kids and the husband’s financial ability.
Custodian salary is the salary given to the wife for taking care of the children and is one of the amounts which is provided to the wife as part of alimony.
E.) Property claims
The husband could file a financial claim on the joint assets if he is the sole contributor to such assets.
Now having discussed the issues relating to the divorce including the claims applicable, certain questions still may arise such as: who gets the custody of the children? What are the protections against relocation and kidnapping of children? We will explore this and more in the following part of this publication.
Custody and Guardianship
Under the UAE Personal Status Law, 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.
In accordance with the UAE Personal Status Law, the child cannot be relocated out of the UAE without the written consent of both parents. If the custodian (being the mother) wants to relocate the child out of 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 courts issue approvals for short visits even if the husband has not agreed, provided some guarantees, in the form of passport of a guarantor, are submitted to the court. The guarantees to be provided are based on the discretion of the courts.
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.
The UAE is not a part of 1980 Hague Convention on the Civil Aspects of International Child Abduction and therefore applies its own 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 public policy of the UAE.
Inheritance is one of the key issues for expats who are settled in UAE.
Usually inheritance law under the UAE will apply unless one of the heirs of the deceased requests that the law of their home country be applicable. That said, real estate in the UAE will be governed by the laws of UAE under Article 17/5 of the Civil Transactions Law.
Non-Muslims can consider the following options for devolution of assets in the UAE: (a) gifts (heba) to one of the heirs which is transferred during one’s lifetime with no consideration; (b) through wills. Non-Muslims are permitted to sign and register a will before the courts at DIFC which do not have to follow the UAE laws and Islamic principles; and (c) foundations or trusts set up in free zones.
Whereas we have discussed the federal laws applicable to personal status matters in the UAE. However, Abu Dhabi has introduced new family laws which will have a massive impact on non-Muslim expats living in the Emirates of Abu Dhabi. A brief on the Abu Dhabi laws will be covered in another publication.