Introduction
While the UAE offers a structured legal environment, family-related matters such as divorce and custody can become complex for expatriates. These situations often involve both emotional and legal considerations, particularly in a multi-jurisdictional setting. At Awatif Mohammad Shoqi Advocates & Legal Consultancy, Mrs. Awatif Al Khouri assists expatriates in navigating key decisions relating to expatriate divorce and family law matters in the UAE.
Federal Decree-Law No. 41 of 2024 for Muslims and Federal Decree-Law No. 41 of 2022 for non-Muslims are the main laws that govern the system. Abu Dhabi Law No. 14 of 2021 is also for non-Muslim foreigners living in the Emirate. These laws are somewhat flexible. For example, in some cases, expats can use the laws of their home country.
This guide gives expat families a short overview of their legal options so they can make smart choices during a difficult time.
The Cycle of Marriage and Divorce
- The Federal Decree Law No. 41 of 2024
This general framework provides for the formation and dissolution of marriages, particularly among UAE Muslim nationals. The parties must have attained 18 years of age to be eligible for marriage, as mentioned in Article 19. Registration of marriage under 18 years of age is prohibited without the prior court’s permission. For a marriage contract, there should be an offer and acceptance from both parties. For Muslim wives, a Guardian must be present, though non-national Muslim wives are exempt if their home country’s law does not require one. Some prohibitions of marriage are mentioned under Articles 28-32. Marriage is permanently forbidden due to kinship (e.g., ascendants, descendants, and siblings), affinity (e.g., a wife’s ascendants), and breastfeeding (requiring five separate feedings within the first two years). Article 41 says that the marriage contract shall be documented in the court, and the documents and medical reports shall be submitted as per the legislation.
Articles 53 to 57 say that the husband can get a divorce if he wants to. According to Article 56, divorce does not happen if it is done in a state of extreme anger that makes it impossible to control speech, or if it is based on a future event without proof of intent. Article 58 says that the husband must sign a divorce within 15 days. Failure to do so entitles the wife to compensation equivalent to alimony for the delay period. Divorce can happen at the wife’s will as well, provided there is some harm as provided for by law. Khula is a separation at the wife’s request, with the husband’s consent, in exchange for compensation (usually the return of the dowry). After divorce, there is an Iddah period that the wife must follow as provided under Articles 84 to 86. For non-pregnant divorcees, the period is three menstrual cycles. For non-pregnant widows, the period is four months and ten days. And for women who are pregnant, their Iddah will be completed upon delivery or miscarriage.
- The Federal Decree Law No 41 of 2022
This process of marriage starts with a civil marriage contract, in which the parties must have attained the age of 21 years, as per the eligibility clause under Article 5. The law states that marriage is prohibited with certain degrees of kinship, including siblings, children, grandchildren and paternal/maternal uncles/aunts. The administrative procedures for marriage are set out in Article 6, which states that the marriage shall be concluded before an authentication judge using a bilingual form provided for in Articles 4 and 5 of Cabinet Decision No. 122 of 2023. The parties should disclose any prior marital relationships, including the dates of previous divorces. The parties can agree on specific conditions within the marriage contract and accordingly, the marriage will be dictated by such conditions for marriage, divorce, post-divorce and custody arrangements. Either of the parties can seek a no-fault divorce under Article 7 and these divorce cases are excluded from the mandatory family guidance committees, which makes the process easier. Regarding alimony, if there is no agreement between the parties, the judge can use his discretion to grant alimony according to the circumstances.
- The Abu Dhabi Law No 14 of 2021
Abu Dhabi Law No. 14 of 2021 (amended by Abu Dhabi Law No. 15 of 2021) is one of the progressive laws in the Emirate that governs the personal status of foreigners. The minimum age to contract a civil marriage is 18 and parties are exempted from submitting a medical examination certificate (which is a requirement in the general law framework) before marriage as per Articles 4 and 5, respectively. The law provides for no-fault divorce, whereby one party expresses their wish to divorce will suffice without justifying the need, reason, or damage of the decision (Article 6). These cases are excluded from the mandatory family guidance committees, which makes the process easier. And accordingly, divorce cases will be referred directly to the court, and once the other party is notified, the court may issue a judgment at the first session. Following the divorce, the law provides clear guidelines for dealing with child-related matters. The judge may exercise their discretion to grant alimony if it is not provided for in the agreement, as provided under Article 8.
Child Welfare Framework
- The Federal Decree Law No. 41 of 2024
Article 112 says that the father is the legal guardian and is responsible for the child’s general discipline, orientation and education. However, Article 112(3) provides that a custodial mother may have educational guardianship over the child if it is in the child’s best interests. This helps the mother to handle and manage the child’s schooling requirements by giving importance to the child’s academic stability. Any conflict that arises with regard to the custody of the child that affects the child’s interest, any party may present the matter to the Magistrate of Summary Justice. The custody officially ends once the child reaches 18 years of age, and upon reaching 15 years of age, the child is granted the right to choose which parent to reside with, provided that aligns with the child’s best interest.
- The Federal Decree Law No. 41 of 2022
Article 10 provides that child custody is a joint and equal right for both parents after divorce, until the child reaches 18 years of age. The law emphasizes the fact that the child has a right not to be deprived of either parent and limits the repercussions of separation. The law recognizes full equality between men and women regarding the rights and duties that extend to joint custody rights as well.
- The Abu Dhabi Law No. 14 of 2021
The protection of a child’s best interest is one of the stated objectives of the law under Article 2. The law states that the parties have equal responsibility over the child on an equal basis after the separation. Once the child reaches the age of 16, they have the legal right to choose between their parents, provided that the choice aligns with the child’s best interests. The court has the power to intervene and make any decisions in the child’s best interest.
Estate Planning
- The Federal Decree Law No. 41 of 2024
Article 171 says that a will is a legal document that goes into effect after the testator dies. Article 173 says that a will is carried out within one-third of the estate after all debts and funeral costs have been paid. As stated in Article 176, the will is made by saying or writing the word that means it. A will to an heir is generally not permitted unless approved by all other mature heirs. However, the court may execute such a will without consent if it is required by a “preponderant interest.” A will exceeding one-third is valid if the testator has no heirs, or if the only heirs are the husband or wife. A will is valid even if there is any difference in the religion of the persons. The testator may amend or revoke the will in accordance with Article 177.
- The Federal Decree Law No. 41 of 2022
Article 11(1), empowers non-Muslims with the explicit right to bequeath their estate to the beneficiary within the country. In the absence of a will, half of the assets will go to the husband or wife, and the other half will be divided between the children, and if there is any difference in the scenarios, then Article 11(2) shall apply. Article 13(2) allows the spouses to register their will at the same time as the signing of the marriage contract. This helps to ensure estate planning even from the beginning.
- The Abu Dhabi Law No 14 of 2021
The Abu Dhabi law under Article 11(1) provides a foreign testator the right to leave a will to whomever deemed adequate regarding their assets in the State. These wills are recorded and maintained within the Abu Dhabi Judicial Department. In the absence of a will, the division of assets is provided under Article 11(2).
Wills can be registered with the Abu Dhabi Judicial Department (ADJD) and the Dubai International Financial Center (DIFC). Abu Dhabi is the only emirate that has its own will registry, ADJD, designed for Muslims, foreigners, and non-Muslim foreigners. The law that regulates ADJD wills is Abu Dhabi Law No. 14 of 2021, along with Abu Dhabi Decision No. 8 of 2022. The DIFC Wills registry follows common law jurisdiction and is specifically designed for non-Muslims. The law governing DIFC wills is Dubai Law No. 15 of 2017 and the DIFC Wills and Probate Registry Rules.
Our Success Story
The Dubai Courts made a recent decision that Article 10 of the Civil Personal Status Law sets joint custody as the default, but the “best interests of the child” are still the most important standard. Awatif Mohammed Shoqi Advocates & Legal Consultancy, led by Mrs. Awatif, representing the father, asked for sole custody after the children’s mother moved abroad.
The Court of First Instance ordered joint custody, but it wasn’t possible because the two parents lived too far apart. The court decided on appeal, with the help of a custody committee report, that shared custody requires direct and ongoing parental supervision, which was not possible in this case. Sole custody was therefore awarded to the father to preserve the children’s stability in Dubai.
The Court of Cassation agreed with this approach and said that courts can ignore the joint custody presumption if it doesn’t work or is bad for the child’s well-being.
The success of Awatif Mohammed Shoqi Advocates & Legal Consultancy shows how important it is to have a strategic lawyer when dealing with complicated family law issues. Mrs. Awatif Al Khouri was in charge of the case, which helped ensure that the UAE courts would put real stability ahead of abstract ideas.
Conclusion
The UAE’s personal status system is adaptable and tailored for expatriates. Article 1(3) of Federal Decree-Law No. 41 of 2024 says that non-Muslims and non-nationals can, in some cases, choose to follow the law of their home country or another agreed-upon legal framework while still being part of the UAE system. In the absence of explicit provisions, courts may also invoke Sharia principles.
In reality, it can be hard to deal with this dual system, especially when it comes to cross-border situations. It’s important to have the right legal help in this case. Professionals like Mrs. Awatif Al Khouri help people make these choices by making sure that the way they do it is both legal and in their best long-term interests.
