FAQ’s on Divorce, Custody and Guardianship in the UAE
When a couples decide to divorce, various issues arise which are complicated when you are residing in a foreign country where you are not aware of the local laws and procedures.
The laws governing divorce in the UAE are very different from the UK and for that matter, most other non-Sharia law jurisdictions. The problems are further magnified if there are children and assets involved.
Here, Nita Maru, solicitor and Managing Partner of TWS Legal Consultants in Jumeirah Lakes Towers, Dubai, looks at some frequently asked questions by people living in Dubai who are thinking of obtaining a divorce.
Where can I divorce and which law prevails?
Expats usually have a choice of jurisdiction as to divorce proceedings through their domicile, residence or nationality.
From the perspective of jurisdiction, there are three main rules:
1) Foreign nationals living in the UAE can file for divorce in the UAE, on the basis that they are residing here.
2) You may be able to divorce in your home country, depending on your home country’s residency rules, i.e. you might have to be living there.
3) You may be able to apply under your home country’s laws in the UAE.
When the parties have different nationalities, this can further confuse matters, as each of them may advocate for their respective home countries law to apply.
In situations where the home country laws do not fully cover certain aspects of the divorce procedure the courts, for example, child maintenance, the Dubai court would continue to hold the jurisdiction to apply UAE law in that case, even if they do accept applying a party’s home country law.
However, when choosing jurisdiction it is very important to seek legal advice from a licensed lawyer from the outset, as the jurisdiction in which you decide to divorce in can have a huge impact on your financial settlement, maintenance, custody and guardianship of children going forward.
How do I initiate proceedings?
Once proper legal advice is sought, either party can open a file to divorce at the court stipulating their decision to dissolve the marriage.
This is followed by a meeting with a conciliator at the court to ascertain if an amicable agreement can be reached or not between the parties. This is mandatory for divorce proceedings in the UAE.
If a resolution cannot be reached then the matter proceeds before the courts to handle the divorce.
Is the divorce process very long in the UAE?
A divorce can be concluded in approximately two to three months if both parties are able to reach an amicable agreement with regards to finances and arrangements for children, and any other matters they choose to include.
If there are disputes regarding financial settlements and children, for example, then the proceedings would take longer to conclude as hearings are required before a Judge.
Who will get custody of my children?
It is important to note that in the UAE parents do not share equal parental responsibility like they would, for example, in the UK.
However, the court here will always act in the best interests of the child and unless they are given a reason to order otherwise, in this jurisdiction following a divorce, the mother will become the ‘custodian’ and the father the ‘guardian’.
Usually the custody of the children remains with the mother until the children reach the age of puberty. At that point the father has a right to make an application for custody to be transferred to himself. If the transfer of custody to the father is disputed by the mother, then the court will make a decision based on the facts of the individual case and the best interests of the children.
As custodian the mother is responsible for the day-to-day care of the children. The father, as guardian, is responsible for the child’s education, medical treatment, accommodation and guiding them in terms of morals and religion.
As a Guardian can I visit my children?
A guardian does have visitation rights to spend time with his children, and the Judge usually determines this to be one or two days a week, unless the parties agree otherwise in an amicable agreement.
Therefore, the mother as custodian of the children cannot usually permanently move to another country in order to deliberately prevent such contact by the father, unless the father consents to the move
Am I able to leave the country with my children?
Leaving and removing a child without the consent of the other party amounts to child abduction.
This is a very sensitive situation, particularly when a mother wishes to flee this jurisdiction to avoid the application of the local UAE law. Even your home country is likely to return abducted children to their country of residence.
If either parent has concerns that their permission will not be sought for travel they can obtain a ‘travel ban’ preventing the child leaving from the airport.
In such situations it is prudent to speak to a lawyer about the arrangements and safeguards that can be put in place if you feel there is a potential risk of child abduction arising.
Should you wish to seek legal guidance with regards to a family / divorce matter please feel free to contact one of our family lawyers at TWS Legal Consultants. Email us at email@example.com or call +971 4 448 4284.