The Federal Decree-Law No. 41 of 2024 marks a significant step forward in accommodating the diverse personal status needs of Muslim residents in the UAE. For the first time, non-citizen Muslim women now have the option to apply the personal status laws of their home countries, allowing for greater flexibility in matters such as marriage. This development provides an avenue for Muslim women to marry without guardian consent if permitted under their home country’s legal framework, all while respecting the UAE’s cultural values and public order principles. For those who prefer to follow UAE law, traditional provisions, such as the guardian’s role, remain in place. This balance of inclusivity and respect for tradition ensures that the UAE continues to be a welcoming and progressive environment for its diverse population.

Key Provisions of the 2024 Law on Marriage

1. General Rule for Marriage:

• Federal Decree-Law No. 41 of 2024 allows non-citizens (including Muslims) to request the application of their home country’s laws for marriage, divorce, and other personal status matters.
  
• If no such request is made, the provisions of the UAE law will apply by default.
  

2. UAE Law’s Default Rule:

• For Muslims, the marriage process under the default provisions is governed by Islamic Sharia principles, which traditionally require:
  
  • A male guardian (Wali) for the bride to consent to her marriage.
    
  • Exceptions to this rule being adjudicated on a case-by-case basis by UAE courts.
    

3. Flexibility for Non-Citizens:

• Non-citizen Muslim women residing in the UAE may choose their home country’s laws for marriage, bypassing UAE’s default Sharia-based rules if their home country’s laws:
  
  • Do not require guardian consent.
    
  • Allow the bride to act independently in contractual agreements such as marriage.
    

4. Guardianship Waivers:

• In cases where the bride applies UAE law but disputes the need for guardian consent, UAE courts retain the discretion to waive this requirement under certain conditions:
  
  • If the woman is considered mature, capable, and of sound mind.
    
  • If the guardian’s refusal to consent is deemed arbitrary or unjustified.
    

Key Changes from the Previous Law (Federal Law No. 28 of 2005)

• 2005 Law:
  
  • Guardian consent was mandatory for Muslim women under Sharia principles.
    
  • Non-Muslims could apply their home country’s laws, but Muslim women (citizens and non-citizens) were strictly required to adhere to Sharia requirements.
    
• 2024 Law:
  
  • Introduces greater flexibility for non-citizen Muslims to apply their home country’s laws, including provisions that may not require guardian consent for marriage.
    
  • Retains Sharia principles for those who do not explicitly request to apply foreign laws.
    

Scenarios for Muslim Women Residents

1. Non-Citizen Muslim Women Choosing Their Home Country’s Laws

• Case: A Muslim woman from a country where the law permits her to marry without guardian consent (e.g., Turkey or the US or the UK).
  
• Analysis:
  
  • The woman can request her home country’s laws to apply in the UAE.
    
  • If her home country’s laws explicitly allow independent marriage decisions, UAE courts are likely to recognize this.
    

2. Non-Citizen Muslim Women Applying UAE Law

• Case: A Muslim woman resides in the UAE and does not request her home country’s law.
  
• Analysis:
  
  • The marriage process will follow the UAE’s Sharia-based provisions.
    
  • Guardian consent remains the default requirement.
    
  • If the woman contests the guardian’s refusal, the court may:
    
  • Waive the guardian’s consent if deemed arbitrary or without valid Sharia justification.
    
  • Uphold the requirement if the court finds the guardian’s objection legitimate.
    

3. Non-Citizen Muslim Women in Interfaith Marriages

• Case: A Muslim woman seeks to marry a non-Muslim man.
  
• Analysis:
  
  • UAE law prohibits Muslim women from marrying non-Muslim men under Sharia principles, regardless of guardian consent.
    
  • Non-Muslim laws (if applied) may allow such marriages, but courts will reject them if they conflict with UAE public order.
    

Challenges and Practical Considerations

1. Court’s Role:
Even when applying foreign laws, UAE courts maintain oversight to ensure the provisions align with UAE public order and morals. This could limit the applicability of certain home country laws that contradict Sharia or UAE norms.

2. Documentation:
Non-citizen women requesting their home country’s laws must provide authenticated and translated versions of their legal provisions, which can delay or complicate the process.

3. Cultural Sensitivities:
Muslim families in the UAE may continue to adhere to traditional norms, regardless of legal flexibility, potentially discouraging women from pursuing independent marriage decisions.

Conclusion

Under Federal Decree-Law No. 41 of 2024, Muslim women who are non-citizens residing in the UAE have greater legal flexibility regarding marriage without guardian consent. Specifically:

1. By Applying Home Country Laws:

Non-citizen Muslim women can marry without guardian consent if their home country’s laws permit it. UAE courts are likely to honor these laws unless they conflict with UAE public order.

2. By Applying UAE Law:

Guardian consent remains the default requirement, but UAE courts may waive it if the guardian’s refusal is arbitrary or unjustified.

This legal reform represents a progressive step towards inclusivity for Muslim women residents in the UAE, although traditional Sharia-based principles still govern cases where no alternative law is invoked.