Hassan Elhais
Al Rowaad Advocates and Legal Consultancy, Dubai
​​​​​​​hassan@professionallawyer.me

Introduction

Personal Status Law No 28 of 2005, Civil Transaction Law No 5 of 1985 and Abu Dhabi Non-Muslim Personal Status Law No 14 of 2021 all govern family matters in the United Arab Emirates (UAE). The UAE Personal Status Law will continue to apply to Abu Dhabi's Muslim residents, but not non-Muslim expats in Abu Dhabi. For non-Muslims, Abu Dhabi's new non-Muslim Personal Status Law (Abu Dhabi Law No 14/2021 on the Emirate of Abu Dhabi's Civil Marriage and its Executive Regulations No 8 of 2022) provides a more flexible and advanced court system for resolving personal status disputes. Couples no longer have to show that their marriage was in trouble before filing for divorce under the new Abu Dhabi Non-Muslim Personal Status Law. Parents who divorce automatically share joint custody of their children, and there are procedures in place to handle any disputes that may arise between the two parties.

It is now possible for non-Muslim spouses in Abu Dhabi to inherit half of their spouse's assets, while the other half goes to their children if they die without a will. In addition, a court for non-Muslim family conflict has been set up particularly for that population group. All court procedures will be available in both Arabic and English for the advantage of foreigners and judicial transparency. Abu Dhabi's legal system has undergone a number of changes to ensure that non-Muslims' rights and legal affairs do not fall under the jurisdiction of Sharia courts. Non-Muslim foreigners can take advantage of the provisions of this legislation because the law supports international civil law practices. For the rights and responsibilities set forth in this legislation, the principle that men and women are endowed with the same legal standing is made essential.

Scope of the law

Jurisdiction

Under the Abu Dhabi Non-Muslim Personal Status Law, the Abu Dhabi court shall have jurisdiction in the following circumstances: (1) when both expats are residents or have existing or previous working addresses in Abu Dhabi; (2) the Abu Dhabi court may assume jurisdiction even if the respondent did not work or have an address in Abu Dhabi, if the civil marriage was concluded in Abu Dhabi; (3) if the respondent has a chosen address in Abu Dhabi or if the claimant has work or a home in Abu Dhabi; (4) if the child is based in Abu Dhabi; or (5) if the claimant is based in Abu Dhabi and the respondent's location is unknown.

Application of the Abu Dhabi Non-Muslim Personal Status Law

If the Abu Dhabi court has jurisdiction, it may apply the Abu Dhabi Non-Muslim Personal Status Law in the following scenarios: (1) on non-Muslim locals; (2) in the case of marriage and divorce concluded under this Abu Dhabi Non-Muslim Personal Status Law; (3) in the case in which the non-Muslim expat has a resident visa in the passport of a country that does not apply Sharia principles; or (4) in the case in which the marriage was concluded in a country that does not apply Sharia principles in family matters.

Marriage and divorce

Civil marriage and paternity

According to this law, a civil marriage is an everlasting marriage between a foreign non-Muslim man and woman. As a result, in order for this law to be applied to a legal marriage, both spouses must be non-Muslim. To contract a civil marriage, the spouses must clearly give their approval by filling out a declaration form in front of the authenticating judge, and they must be at least 18 years old. The law does not establish the relevant financial regime that governs marriage if the parties do not agree to it. The law simply states that both spouses may agree on the terms of the contract, and that they must consider the rights provided in the contract for each spouse during the marriage period and after the divorce. Non-Muslim couples in Abu Dhabi can now marry based on the will of both the husband and wife, removing the need for authorisation from the wife's guardian, which was previously required under Islamic marriage. For non-Muslims, proof of paternity will be based on marriage or recognition of paternity under the new law.

Divorce

Unilaterally or jointly, couples may end their marriage contract via a divorce, and no proof of harm or blame is required in a non-Muslim foreigner divorce under this law. The only requirement is that one spouse must state his or her desire for separation and for the end of the marriage partnership in court. Muslim and non-Muslim divorces differ greatly in terms of the process. Foreign divorces involving non-Muslims bypass the Family Guidance Committee, which must still be involved in Muslim divorces. If the court applies the Abu Dhabi Non-Muslim Personal Status Law, the divorce could be granted to either party on the basis of a no-fault divorce in the first court hearing where neither party is required to provide any reason for the divorce. The first hearing is scheduled 30 days from the date of filing the application. This period of one month from the filing date is given for reconsideration purposes.

Financial claims

After the divorce is finalised and alimony is requested, the wife may be granted financial assistance. A variety of variables will be considered in making a decision on this request, including the length of the marriage, the age of the wife and the financial situation of the parties involved in the divorce. The judge may take into account the extent to which the husband contributed to the divorce, which means that the husband will have to pay more money to his ex-wife if it is proven that his actions, neglect or blunders led to divorce. Based on the divorce, the court has the right to appoint a financial expert to evaluate the lump sum amount, which has to be paid to either spouse. The law has specified several factors to evaluate this amount, for example, length of the marriage, fault of the parties, moral/ financial harm, loss of opportunity if the wife had to stay in the house, financial/social/economic position of both parties, educational level of both parties, amount could be higher if the husband restricted the wife from working, standard of living, contribution to wealth, medical condition, the ability to work in the future, wife's wealth, number of children and difference of income between the spouses.

In the evaluation of the amount, a financial expert appointed by the court has the right to consider one of the following to evaluate the maintenance claim: (1) minimum of 25 per cent of the last salary multiplied by the number of years in the marriage; and (2) percentage of the market value of the husband's assets, including, but not limited to, real estate, shares and company stock.

The expert may also consider jointly owned assets. The court has the right to order the husband to make payments in one lump sum or instalments to make sure that the husband can afford to pay them.

Custody and travel ban

According to the law, custody shall be joint for the children until they are 16 years old. Subsequently, they will have the right to choose between their parents. However, according to Article 33 of the new law, if a child has reached 12 years of age and wishes to remove one of the parents from joint custody, then both parents have the right to individually terminate the joint custody and become a sole custodian through a special application submitted to the court. The above right is also available for either custodial parent if the other parent has subjected the child to an inappropriate environment or violence; if one custodial parent believed that the child needs special medical care, which cannot be provided by the other parent; if one custodial parent has psychological issues that may affect the child's best interest; if one custodial parent is not free to take care of the child; if one custodial parent is addicted to alcohol or drugs; if one custodial parent gets married; or if one custodial parent believes that the other parent has any medical condition that means that this parent may not be able to take care of the child. Notwithstanding the aforementioned conditions, it is important to note that custody matters are subject to the court's discretionary powers. Therefore, the aforementioned conditions may not be considered as exhaustive/exclusive reasons as the court may terminate custody for any other reason. Generally, the court makes a decision on the basis of natural justice and best practice in personal status matters internationally, especially as the child's best interest remains the governing rule on top of these points.

Terminating joint custody is an extreme case, but the law has organised arrangements in the event of a dispute between custodians. These arrangements are not for the termination of custody but simply to determine the specific point of conflict through a special request to obtain the judge's decision on this point only without terminating joint custody. In the case in which such a request is submitted to the judge, the court shall issue a decision considering the stability of education and sporting life of the children, and not to change the child's lifestyle as much as possible.

The court has the right to impose a fine on a joint custodian who does not respect the custody arrangement, in addition to also deducting time from the custodian's custody duration.

Within the joint custody period, both parties have the right to put a travel ban on the child if they believe that there is a potential flight risk, and accordingly, the joint custodian may be unable to travel alone with the child without the consent of the other joint custodian or the court. Such a request is subject to the court's discretionary power.

Inheritance

For foreign nationals, a will lets the government know how they want their assets distributed after their death. Filling out a form to register non-Muslim wills while signing the marriage contract is an option for non-Muslim spouses who wish to designate how their assets will be distributed in the event of their death. Any of the testator's assets located in the UAE may be bequeathed by the foreign testator to anyone he/she chooses. In the absence of a will, half of the inheritance will be given to the spouse and the other half will be equally divided among the children, with no distinction between boys and girls. If the deceased had no children, the inheritance will go to his/her parents equally, or half of it will go to one parent if the other is not there and the other half will go to his/her siblings. If there are no living parents, then the inheritance will be shared equally among the siblings, regardless of gender.

Composition and conduct of court proceedings

The court is made up of a single judge, who may or may not be Muslim. All court forms and procedures must be bilingual in Arabic and English, and the undersecretary is responsible for issuing the bilingual forms. If the two parties to the case do not speak Arabic, the court has the discretion to finish all litigation procedures in English, provided that the claim and decision are attached in both Arabic and English. Expatriates are exempt from entering data in Arabic or translating documents from English to Arabic; the translation branch of the court translates documents or entries for a charge. Litigants or applicants may attend court in person or appoint a lawyer to represent them. After receiving a licence to be included on the court's foreign lawyers' roll, foreign lawyers may represent one of the clients before the court.

Alternative dispute resolution: a novel approach to family matters

A special roll shall be established under this law for the registration of arbitrators in family conflict. The undersecretary makes decisions on the criteria, restrictions and methods for roll registration. The spouses may agree to arbitration, either before or after the family dispute, by appointing a single arbitrator or tripartite arbitration panel of arbitrators on the roll to settle the dispute. The requirements of Federal Law No (6) of 2018 shall apply to family matter arbitration procedures.