Divorce is Bad Families Scenario
Divorce in today’s modern world has become very common for various reasons like lack of compatibility, poor communication and some could be for even more grave reasons like infidelity or impotency.
At the end of the day, then it’s an understanding between the couple to move on for better, that’s why even the laws around the world dealing with family matters have a provision of mutual or amicable settlements.
The population of the United Arab Emirates consists of 80 percent of expatriates and if you’re a non-Muslim, living in the United Arab Emirates (UAE) and are wondering about the legal aspects of divorce, then, take time to read this article to find answers for all of your basic queries.
The UAE’s legal structure has been established in line with civil law principles and Islamic Sharia law. It is also pertinent to know that the principles and rules of Islamic Sharia law hold the utmost importance in determining several legal aspects under the UAE’s legislation and also it is acknowledged as the primary source of the UAE laws.
Federal Law number 28 of 2005 on Personal Status is the governing legislation, which is highly based on the Sharia Principles, deals with all the aspects of the family law such as marriage, divorce, finances, children, and inheritance matters.
As per Article 1 of the Personal Status Law, the scope of the application of the law is not limited only to UAE nationals (Emiratis) but is also extended to all the Muslim and non-Muslim expatriates residing in UAE and also provides that it is applicable to the non-Muslim UAE nationals unless they have special regulations relating to their sect and religion.
So, this provision of the Personal Status law clears the availability of the option to proceed with a divorce case in UAE courts for non-Muslim residents of UAE.
The other relevant laws governing family matters also include Federal Law number 11 of 1992 (Civil Procedure Code) and Federal Law number 5 of 1985 (Civil Transaction Code). Non-Muslim UAE residents can file for divorce in either of the following manners:
- Their own home country; or
- In the UAE courts and through a petition to the court can opt to be governed by the law of their country as per Article 1 of the Personal Status law.
- Or can choose to be governed by Personal Status law of the UAE on the family matters.
The residents of UAE will only be eligible to apply for divorce in the UAE courts if they had been residents of the UAE for at least a period of six months before the filing of the divorce case.
Where the parties have decided to proceed with the case for divorce with the UAE courts but have opted to be governed by the law of their own country on family matters, need to be aware of these following aspects of the UAE’s law on personal status:
As long as the parties to a divorce are from the same country there will be no existence of any conflict on the application of their country’s law, but the complexity arises where the husband and wife have different nationalities as to whose country’s law will be applicable to govern the case of divorce.
We can find the provision with regards to whose country’s law shall apply in case of different nationalities in Article 13 of the Federal Law number 5 of 1985 on the Civil Transactions Law, which states that the law of the state to which the husband is national at the time when the marriage is contracted shall be applicable to govern the case of divorce.
In the case where the law of the parties’ home country has failed to deal with any aspect of the divorce procedure, it gives the courts discretion to apply UAE’s law.
It is necessary to check about the provisions of your home country’s law governing the divorce cases for nationals living abroad, to make sure if you can apply for divorce in the place where you are a resident.
Process of filing of divorce in the UAE courts
- The case for divorce begins with either party registering the case at the family guidance section at the respective judicial department, in the emirate where they reside. While registering the parties are required to submit copies of their marriage certificate, passport, and Emirates ID.
- After the registration of the divorce case in the family guidance section, a conciliator is appointed to establish the existence of sufficient reason to constitute a strong case for divorce. The process of meeting with the conciliator is a mandatory procedure before proceeding further as the main role of the conciliator is to convince the party to reach amicable settlements,
- if the parties come to a state of mutual settlement at this stage, then the parties then will need to draft a settlement based on their mutual agreement and sign it before the conciliator, thus can have an amicable divorce. If the parties fail to reach any settlement during this process then the conciliator will issue the claimant with a referral letter, allowing them to proceed before the court of the first instance to conclude their divorce case. The referral letter must be submitted to the court at any time within three months from the date of its issue.
- once the case is before the court of the first instance, each party is allowed to submit the evidence in support of their claims and defenses. Once the judgment is issued, it can be appealed within twenty-eight days from the date of issue of the judgment. The appeal court follows the same procedure as that of the first instance court, except that it constitutes a panel of three judges and not one like that of the first instance court which has only one judge and allows the parties to dispute within twenty-eight days of such appeal.
Grounds on which a divorce can be filed: As per Article 110 to 135 of the Personal Status Law, the grounds on which a divorce can be initiated are as follows
1- Existence of defects like insanity, leprosy, impotence, vaginal occlusion, and so on.
2- Failure to pay the due dowry.
3- For any kind of prejudice and discordance.
4- For abstaining from providing the necessary support (Insolvency).
5- For being absent or disappearing for a reasonable time.
6- For the reasons of imprisonments.
7- For Ila’a and Zohar – Ila’a can be explained as where the husband has taken an oath to not have sexual intercourse with the wife for four months, but fails to keep the oath and enters into sexual intercourse before the expiry of the said four months, this divorce is irrevocable. Zohar is when the husband compares his wife to women he is forbidden to marry (mother, sister, and so on).
The above-mentioned list for grounds of divorce is not an exhaustive one. Some of the other reasons for divorce can include adultery, mental or physical abuse, and desertion (where the husband leaves the marriage without the consent of the wife).
In UAE, Muslim men can divorce their wives without any grounds for divorce and the above-given reasons to file for a divorce are limited to women intending to initiate divorce.
However, non-Muslim men are required to file divorce on a specific ground. Some of the other common reasons for seeking a divorce in this country are lack of proper communication, loss of job, religious or cultural differences, unrealistic expectations, and so on.
In children’s custody UAE, the parents do not share equal responsibilities with the child. According to Federal Law number 28 of 2005 on Personal Status, provides that the mother will take the role of a custodian and the father will take up the role of a guardian. Article 143 and 144 of the Personal Status law sets out on who can qualify to be a custodian as:
1- Should be rational.
2- Should be mature enough to hold the position of a custodian and also should have attained the age of puberty.
3- Should be honest nature.
4- Should be capable of bringing up and taking care of the child.
5- Should not have any infectious disease.
6- Should be a person who is not sentenced for a crime of honor.
If the custodian is the mother, she must not remarry unless the court thinks it’s in the best interest of the child and also should share the same religion as that of the child.
In case, the custodian is the father, then he must have a suitable woman living in the home to provide the required care for the child and also should share the same religion as that of the child. According to Article 156 of the law on The Personal Status, the child’s custody under the mother ends when their son reaches the age of 11 and when the daughter reaches the age of 13.
The father is the guardian is entitled to claim the custody of the child. Having said that, the mother is also entitled to claim the extension of the custody period until their son finishes his education and the daughter gets married, provided she can prove that she has been good with children with respect to the school performance reports, in providing good medical history and so on.
Likewise, the father can also claim the custody of their son, in the case where he is convinced that his son is becoming of soft nature by staying with the mother and wants him to grow up to be a more responsible man.
The role of the custodian is to make sure to provide with day-to-day required care necessary for the child. Whereas, the guardian, who is the father, holds the responsibility of providing the child financially, along with shelter, expenses for food, medical care, education, and other necessities.
Maintenance UAE, there is no room for spousal maintenance after divorce. The only payments provided by the father are for the expenses of children’s education and living, which may include rent and salaries for help at home.
The amount to be paid by the father for these expenses is determined based on the income and also these payments are only limited to thirty percent of his income.
However, if the husband wishes to pay more, he can do so. When it comes to the maintenance of the wife, as already mentioned above that there is no provision for spousal maintenance in the law on the personal status.
However, Article 69 of the law on personal status, provides for support by the husband for a period of three months following the divorce.
This period is called the idea months, where during this time the wife is not allowed to remarry due to the possibility of pregnancy. The woman is also entitled to claim compensation in the following circumstances:
1- For the duration of time where the husband failed to provide her with maintenance (three months).
2- For moral and psychological damages as a consequence of being divorced.
Division of assets and property when it comes to the division of the assets and property, generally the parties retain the assets and property which they own.
However, the court will divide the bank accounts and shares which are in joint names equally or in accordance to the percentages, provided there was no evidence to the contrary in line with general civil laws.
For assets owned in a foreign country, the court where such assets are located applies international private law to decide the law applicable to the distribution of these assets.
Immigration Implications Before the introduction of the new visa rule for female divorcees’, getting a divorce would have surely led to the cancellation of the spousal visa, whereas this new visa rule lets the female divorcee and her children stay in the UAE for up to a year after her divorce and also, she can extend it for a total of two years.
To avail of this new visa rule, she must be able to establish to have housing, the ability to earn a living wage, and provide medical certificates.
Where the husband’s residency permit is sponsored by the wife, in case of divorce it will be canceled. He will then need to get a work visa or have to set up a company of his own to remain in the country.
This article tends to answers the basic queries while pursuing the case of divorce as per UAE laws.