Tim Elliott
Welcome to another edition of Lawgical, the UAE’s first legal podcast, courtesy of the Dubai-based law firm HPL Yamalova & Plewka. I’m Tim Elliott, socially distanced in JLT, high up at the firm’s offices, and as ever, I’m with the Managing Partner, Ludmila Yamalova. Great to see you.
Ludmila Yamalova
Lovely to see you, Tim.
Tim Elliott
In this edition of Lawgical, we’re considering, in as brief and user-friendly a way as possible, the issue of custody and guardianship in the UAE. What happens when parents go their separate ways? Now, we’ve considered custody and guardianship in previous podcasts on a number of occasions, Ludmila, but we’ve yet to specifically focus on this topic until today. Is that correct?
Ludmila Yamalova
Yes, that’s right. Custody and guardianship of a child are outlined in articles 142 to 177 of Federal Law Number 28 of 2005 on Personal Status, which is commonly known as the Personal Status Law.
Tim Elliott
When does custody and guardianship really come into play? When does it become a defining factor?
Ludmila Yamalova
Realistically, it comes into play when the parents of the children are going their separate ways. The separation can be either informal, meaning the parents are living apart with no formal divorce, or more frequently, it happens as part of a formal divorce. When a divorce occurs, the question of who will have the children, who they will live with, and who will financially support them becomes necessary to address. This is when custody and guardianship become crucial.
Tim Elliott
In the UAE, these issues are governed by the UAE Personal Status Law, which is based on the principles of Sharia, correct?
Ludmila Yamalova
Yes, exactly. The Sharia principles lead to a differentiation between custody and guardianship, which is not common in many other countries that are not based on Sharia. For example, in Western countries like the US or in Europe, custody and guardianship are often considered one and the same. The focus is typically on who the child will live with, and parents often share joint responsibility. But in the UAE, the two terms—custody and guardianship—are separate concepts.
Tim Elliott
So, what is the difference between custody and guardianship?
Ludmila Yamalova
Custody refers to the physical possession of the child. Essentially, it means who the child will live with on a full-time basis. Guardianship, on the other hand, refers to the legal right and decision-making authority over the child, including important decisions about the child’s education, healthcare, and other major life choices.
Tim Elliott
Does this mean custody is typically granted to the mother in the UAE?
Ludmila Yamalova
Yes, in general, custody is usually offered to the mother. For sons, custody is typically until the age of 11, and for daughters, it’s until the age of 13. However, the UAE courts are often understanding of family dynamics and can, in certain cases, allow children older than these age limits to live with their mother if it’s deemed in the best interest of the children.
Tim Elliott
Are there any specific requirements for a mother to maintain custody?
Ludmila Yamalova
Yes, there are a few requirements. The mother must be of sound mind and must be of the same religion as the child. Additionally, if the mother remarries, she could lose custody unless the court decides otherwise.
Tim Elliott
What about the father? Can he also have custody?
Ludmila Yamalova
Yes, the father can have custody if, for example, the mother is not available or willing to care for the children. However, if the father is to have custody of a daughter, he must have a female relative, like a sister, mother, or wife, living in the same house with him.
Tim Elliott
What about guardianship?
Ludmila Yamalova
Guardianship is typically assigned to the father in the UAE. The father is responsible for the financial support of the children, including living expenses, education, and medical care. The law also ensures that the father’s financial support must be proportionate to his income and must maintain a lifestyle for the children that is similar to what they enjoyed before the separation.
Tim Elliott
Is there any relationship between the custodian’s rights to travel and the guardian’s authority?
Ludmila Yamalova
Yes, the custodian’s right to travel is dependent on the guardian’s approval. The law generally allows the guardian to hold the child’s passport, which means the custodian would need the guardian’s permission to take the child out of the country.
Tim Elliott
This is a very distinct and strict set of criteria to be aware of for those separating under UAE law.
Ludmila Yamalova
For sure. And it’s especially important for non-Muslim couples or even Muslim couples who were married under the laws of another jurisdiction. There’s now an option to choose between the UAE’s Personal Status Law or the laws of the country where the marriage was registered, which adds some flexibility.
Tim Elliott
That’s another edition of Lawgical, this time examining the topic of custody and guardianship, the differences and criteria for both in the UAE. As always, our legal expert on Lawgical, Ludmila Yamalova, Managing Partner here at Yamalova & Plewka. Once again, thank you for your time.
Ludmila Yamalova
Thank you, Tim.
Tim Elliott
If you have a legal question you’d like answered in a future episode of Lawgical or if you’d like a consultation with a qualified UAE-experienced legal professional, head to LYLawyers.com and click on Contact.
