1. Choice of divorce law if both parties share the same nationality
In the UAE, the applicable law to divorce cases is Islamic Law (also known as “Shari’a”). However, Federal Law No. 28 of 2005 On Personal Status (the “Personal Status Law”) allows the parties to choose the application of the laws of their home country. Indeed, according to Article 1(2) of this law, “the provisions of this Law shall apply to citizens of the United Arab Emirates State unless non-Muslims among them have special provisions applicable to their community or confession. They shall equally apply to non-citizens unless one of them asks for the application of his law.”
2. Choice of divorce law if both parties do not have the same nationality
Given the diversity of the UAE population, marrying someone from a different nationality is quite frequent. This renders the situation a bit more complex. In this case, Courts will apply Article 13 of the UAE Civil Code which provides: “the law of the state of which the husband is a national at the time the marriage is contracted shall apply to the effects on personal status, and the effects with regard to property, resulting from the contracting of the marriage.”
3. Conciliation as a prerequisite to the lawsuit
Pursuant to Article 16 of the Personal Status Law, conciliation is a mandatory step of the divorce proceedings. The conciliation takes place before the Family Orientation Committee. Parties may resolve their differences amicably and in this case a settlement will be signed before the conciliator.
4. The question of custody of the children
Among the mutual rights and obligations of spouses, the Personal Status Law grants both parents the obligation to take care of the children and their education. However, a distinction is made between guardian and custodian. Pursuant to Article 156 of the Personal Status Law, the mother is considered the custodian of the children if they are minors. In the UAE, a boy is considered minor until the age of 11 whereas a girl is considered minor until the age of 13.
Considered as the natural custodian of the children, the mother is often granted custody of the children whereas the father is considered as the guardian of the children thus having the obligation to financially take care of them. If the mother is often granted custody of the children, Courts always act in the best interests of the children. Therefore, if the mother is deemed unfit, she will not be granted custody. Joint custody of children is not permitted by the law.
To sum up, the content of divorce laws in the UAE can be surprising for some expatriates unaware of the fact that these laws are based on Shari’a. However, parents can rest assured that the UAE law is very protective of the children’s best interests. Plus, parties have the option between choosing UAE law or their home country’s law and whether the first or the second option is the best will depend on the case at hand.
