Divorce and Custodial Rights
The UAE has the highest rate of divorce in the GCC. According to the data released by the Dubai Statistics Centre, the divorce cases in the UAE increased by 40 percent for expatriate couples, 7 percent for Emirati couples, and 25 percent for Emiratis married to expatriates. This alarming rate of increase in divorce necessitates shedding some light into the issues related to it. This post mainly focusses on the points to be noted if a couple decides to divorce in the UAE rather than in their home country.
In the UAE, a woman can divorce her husband regardless of his consent, according to the Supreme Court. According to the new ruling, if the request was filed by the wife, you are required by law to order a divorce. Also the husband must not be granted a divorce if the wife also did not file and if there is no evidence of fault or mistreatment by her. If the husband mistreated the wife, arbiters should order a divorce and the wife will receive all her marriage and divorce financial rights, including dowry and other compensation.
Arbiters should order a divorce and a settlement depending on the extent of mistreatment, if they find that there was fault on both sides. If the wife mistreated her husband, she waives her right to any financial settlement in the divorce. The Supreme Court has said that judges should ignore a womans decision to give up a financial settlement if there is any indication that the request was coerced. In such cases, a court must order a divorce but also require the man to pay the wife her full financial due.
Also, the wife has a right to financial support from her husband, even if she is wealthy or of a different religion from him, if she had submitted to him according to the law. The amount of support is calculated on the basis of husband’s financial status and provided it is not less than wife’s minimum requirement. Once, the amount of support has been set, requests cannot be made relating to increase or decrease in the support amount except in exceptionally urgent cases. This being said about divorce, now let us move on to the issues related to distribution of assets in case of divorce.
Distribution of Assets
Here we may come across a question as to whether Matrimonial regime for sharing all assets and liabilities of the accumulated wealth of the spouses during the marriage can be applied or not. Yes, this can be applied in case of uncontested divorce and if one of the parties insisted on applying it provided that such party should submit before the court with the related codes and law of his/her country.
Regarding the Matrimonial Regime, Federal Personal Status Law shall apply in case there is no matrimonial regime and based on Article 5 of the Federal law, the state courts shall be competed to try personal status actions initiated against citizens or foreigners having a domicile, residence or workplace in the state. Pursuant to Article 62 of the Federal Personal Status Law, a major woman shall be free to dispose of her property. The husband may not dispose of her property without her consent; each of them shall have impendent financial assets. If one of them shares the other in developing his/her property or building a residence etc., s/he may claim his/her share from the other upon divorce or death.
Pursuant to Article 72 of the Federal Personal Status Law, the wife may leave her house in the cases where such leave is permitted by the ruling of law, usage or for a necessity, without this being considered a breach of due obedience.
In determining issues of custody, the UAE courts may take into consideration the parents religion, place of permanent residence, income, and the mother’s subsequent marital status. Priority is generally given to the Muslim father, irrespective of his nationality, when the mother is a non-Muslim. As a basic starting point under Sharia law, a Muslim mother may be granted custody of girls under the age of nine and boys under the age of seven, at which time custody may be transferred to the father. If a child has attained an “age of discretion,” that child may be allowed to choose the parent with whom he or she wishes to live.
If the court finds the mother “incompetent,” custody of a child, irrespective of his/her age, can be given to the father, or to the childs grandmother on the father’s side. A finding of incompetence is left fully to the discretion of the Sharia judge. Sharia courts consistently find parents incompetent if they engage in such behavior that is inconsistent with the Islamic faith. Furthermore, a mother may lose her rights of custody should she remarry. If both the mother and father are ruled incompetent, custody of the children may be given to the childs paternal grandparents.
Repatriation of children to Dubai will depend on who gets the custody of children according to the Federal Personal Status Law. A parent can obtain a court order that places a travel ban on a child, and this ban will be enforced at all the airports in the country. If a parent attempts to leave with a child who has been placed under a travel ban, this could potentially lead to new legal issues concerning the custody of the child. When child custody disputes arise between parents, custody decisions are based on Islamic (Sharia) law. Non-UAE nationals resident in the UAE, whether married to a UAE or non-UAE citizen, may file custody cases in the UAE.
The custody of the child is determined by the court in the best interest of the child. The mother may not take her child for travel or move him from the conjugal house during the existence of a conjugal relation or during the revocable divorce waiting period without his/her fathers written consent. After irrevocable divorce, the mother may move with the child to another city within the state unless such movement affects the childs education or causes harm to the father or makes him suffer unusual hardship or costs for visiting the child. The court shall also allow for visitation rights. The custody awarded to women shall terminate when the male child reaches eleven years of age and the female thirteen, unless the court decides for the childs interest to extend this period till the male becomes of age and the female gets married. The custody awarded to women shall last if the child is demented or infected with a disabling disease unless the childs interest requires otherwise. If a child has attained an “age of discretion,” that child may be allowed to choose the parent with whom he or she wishes to live.
Enforcement of Foreign Judgments
Custody orders and judgments of foreign courts are not enforceable in the UAE. For instance, the UAE courts will not enforce U.S. court decrees ordering a parent in the UAE to pay child support. An American parent with a U.S. court order granting him/her custody can present that order to the court, and the court may take it into consideration, however, it shall not be binding in a custody proceeding in the UAE.
Non-custodial parents are guaranteed visitation rights, but may have to seek approval from the appropriate authorities. There are also cases where the custodial parent and family have been very open and accommodating in facilitating the right of the non-custodial parent to visit and maintain contact with the child, but not all the custodial parents and families are so accommodating.
Written by Nesirin Vinod.
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