Tim Elliot: Welcome to Lawgical, the U.A.E.’s first, and only, legal podcast. My name’s Tim Elliot. Lawgical comes to you from the Dubai-based legal firm, HPL Yamalova & Plewka. As ever, the Managing Partner, is with me, and that’s Ludmila Yamalova. Good to see you.
Ludmila Yamalova: Good to be here, Tim.
Tim Elliot: This time, divorces, but divorces for non Muslims. Now, Ludmila, unfortunately marriages break down. It’s a fact of life, but the option you have if you are non Muslim and you’re a resident here in the U.A.E. is what I’d like to cover today. I suppose we need to start at the beginning. I suppose if you divorce in your own country, is that option one?
Ludmila Yamalova: Yes. For non Muslims, again, today is specifically focusing on divorces for those expats who are not Muslim expats. This is important to highlight several time because you could be an expat and in your mind you might not even be a very religious person and you think you are subject to a non Muslim law in your country, where you come from, that might be the case, but if you are Muslim, even if you are not a super devout Muslim, in the U.A.E., you would be subject to the U.A.E. personal status law, and therefore, you are treated as a Muslim, so you cannot carve out from that. What this particular podcast is about is non Muslim expats, not just expats, but non Muslim expats.
For all those non Muslim expats, and just again, another caveat to this, if the wife is Muslim and even if you are one of those couples where you would have gotten married elsewhere and the man is a non Muslim and the wife is Muslim, and if they were to get married, say in the U.S., that is a perfectly normal civil marriage, but for the purposes of the U.A.E. they would be considered a Muslim family, and they would still be subject to the U.A.E. personal status law. In that case, their marriage would still be Muslim and therefore, they are not the subject of this podcast.
Today we will focus in particular on what options are available for non Muslim expats living in the U.A.E. and who want to go their separate ways. There are several options.
One, and for a number of reasons this may or may not be a preferable option, is, as you rightfully said, is to get divorced in the country where you got married, or your home country, wherever that may be. But as I say that, I know for those who live in Dubai, this is probably easier said than done because so many couples here, the spouses could be from different countries and they could have gotten married in yet another country, and their children could have been born in yet another country, and so on and so forth. It is a lot more complex. But ultimately as non Muslim expats, they always have the option of going back to their home country, whatever that country may be, or home countries, and get divorced there. Once you get divorced there, then you would come back into the U.A.E. with a divorce certificate and then you would have that particular divorce certificate applied here. You would then be deemed here as divorced.
What you could also do is if you have a court order on the back of a divorce certificate of divorce proceedings in a foreign country, you could come back here and then enforce the court order here. This is a little more complex and I will come back into it shortly. But one option at a high level is to go and get divorced in the foreign country, and at least for the purposes of your legal status, on the back of the divorce decree from that country you would legally be considered to be divorced.
The other option is to get divorced amicably. Amicably means that you just decide without having to go to court and get divorced without the involvement of a judge. This is a little more nuanced for the purpose of expats living here because you can amicably decide to separate and go separate ways, but if you want to obtain a divorce certificate from the U.A.E., you would still need to file it in court. You still have the option is to go back to your home country, whatever the country might be, and then register your divorce in that country. You are still divorcing amicably, but without involvement of the court, but rather just registering your divorce through the divorce registry, so it is more of an administrative process than judicial. It does not require a court judgment. It does not require lawyers to be involved. You could just amicably go and submit your divorce papers and on the back of that you will have a divorce decree and then you can come back into the U.A.E. with that. It is still called an amicable divorce, but it is administered outside of the U.A.E.
If that option, for one reason or another, is not available, then you can still amicably divorce in the U.A.E., and we have done a number of these divorces here. You would still need to have it registered through the courts. We have done, in fact, a podcast on amicable divorces already and how to do it. Ultimately it requires, obviously, both spouses to be on the same page and to document their agreement (a) about the divorce and (b) the terms of their separation, be it financial or regarding their children. Then that agreement should be either drafted in Arabic or legally translated into Arabic and then you would have to submit basically a request to the court. You can do it all online. In a way you are filing a divorce case, but it is not going to be a substantive case. It is just going to be an administrative case. More importantly, it basically just gives you a case file, if you will. It is a case file, and through this case file then you would submit your settlement agreement to the court and say, please, register the settlement agreement. On the back of the settlement agreement, please render us be divorced, and issue a divorce certificate. That is the other way of doing it.
If you want to amicably divorce, one way is to do it in your home country and have the divorce registered there. And the other way, if you are going to do it from the U.A.E., you would still need to follow the court process, but it is administrative, quick, and fairly unemotional. Again, if both parties are on the same page, you don’t need to hire lawyers. You can literally just do it all yourselves. You just need to be prepared to do it in Arabic and you can do it through legal translators and just have all your documents, including your agreement legally translated, and then you can submit all of your requests to the court online through the court portal, or you can go do it through the typing center directly at the court.
Tim Elliot: Okay.
Ludmila Yamalova: And then the third option is contentious divorce. This is really where you go with your guns blazing.
Tim Elliot: Yes.
Ludmila Yamalova: That is the third option. This perhaps is a little more substantive. This is a contentious divorce, but within the U.A.E. It is a lot more nuanced and can be a lot more complex because it depends on what law we are going to apply to this divorce. This happens in cases of couples where they are non Muslim, they might be citizens of different countries, they might have gotten married in yet another country, but they are living here and the court has jurisdiction over them living here, so they want to get divorced here, but they just cannot agree. That happens to most of the couples, at least that we know of.
Here you have two choices in terms of how your divorce is going to be administered. Remember, to every divorce, there are two major categories of issues that are going to be at stake. One is regarding financial entitlements, payments and obligations, and the other one is regarding children. If you don’t have children, that is a much easier avenue to pursue, but if you have children it is a lot more complex. But ultimately these are the two categories of issues, money and children.
If you have a contentious divorce and are applying through the court, it could be filed by the husband or the wife, it does not matter. Where the slight difference can come in is which law will be applied. The default law when you apply, when you submit this court request for a divorce, you open a case against your husband, or vice versa, for divorce, then the default application could be the U.A.E. personal status law. The U.A.E. personal status law is, in turn, based on the principles of Sharia, and therefore, ultimately in simple terms your divorce would be subject to Sharia, which means that in terms of deciding how the financial assets and obligations are going to be administered, they would be subject to Sharia jurisprudence, and equally so, with regard to the children, they would also subject to Sharia jurisprudence. We can talk about shortly what that means.
The other option, however, the U.A.E. law does have the U.A.E. civil transactions law, and in particular, Article 13, which allows for non Muslim expats to request for the law of the country where they were married to apply to their divorce.
Tim Elliot: Okay.
Ludmila Yamalova: This, by the way, simplifies it a lot because before there was some mention in the law, but it was a little more generally drafted, and there were a lot of questions around that particular provision in the past. Previously it said the law of the nationality, but whose nationality? Often it happens here that people have multiple nationalities. The same person may have multiple nationalities. We have dealt with all of these eventualities here. This is one of the beauties of the U.A.E. There is a cocktail of so many interesting concoctions in terms of our demographics.
Now the new law makes it a lot more streamlined and simpler, so now it is the law of the country where you got married that will apply. That too has an interesting nuance. Perhaps we will see less of this now, but so many people here would fly to a nearby country just to get married because they are expecting a baby. In the past, you could not have had a baby without a marriage certificate. But we have covered this on this podcast and that is no longer an issue, and perhaps there is less of a reason to be compelled to go to a nearby country and just get married for the sake of getting married.
Tim Elliot: But you still have a situation where people live here, and this is a hub, an international hub, and a short hop to – I don’t know – the Maldives. It is a great backdrop for a wedding. You still see this a lot.
Ludmila Yamalova: Indeed. This is why this is important because the place where you got married may be a fundamental factor in deciding how your relationship will be dealt with upon divorce. You mentioned, Tim, an interesting country, Maldives. Maldives is very fun, luxurious, very relaxing, the ultimate decadence for some, but Maldives also has a very large Muslim population. The Maldives law could actually be Muslim laws. This is one of those intricacies that you want to keep in mind as you get married. A lot of people get marred in Seychelles, for example, or Sri Lanka. If you do get married in one of those places, then it is the law of that country that could apply.
Now, as I say this, for those who are listening to this before they get divorced, or are thinking of getting divorced, another option if you find yourself in the situation of wanting to get married in one of these other countries because, like you said, it is more fun, more exotic, and more convenient, you could also then ratify that marriage certificate in your home country later on. You can go back to England, and say, we are married, and we just want to also get a marriage certificate from England put on the back of your previous marriage certificate. But for purposes of the non Muslim expats, you also, by U.A.E. law, and that is Article 13 of the Civil Transactions Law, you can actually choose the law of the country where you got married to apply. Let’s say it is in England or France. Now in the case of a divorce, you would request the judge to apply the law of that country where the marriage certificate was issued.
In the past under the previous law, it was a law of nationality of the spouse, of the father, or the man, or the husband, but then the parties had to agree based on the application of that particular law. Now as per this law, one or the other party can request the law of the marriage certificate to apply and they are entitled to that. There is no requirement for the other party to agree to that. However, there are more practical nuances about applying for a law in the U.A.E. because ultimately what you are asking for the court to do is to apply the law of a foreign country here in the U.A.E. You are asking an Emirati judge to apply American law, English law, or French law, and that is not easy to do.
Tim Elliot: But there must be practicalities with that. You cannot expect a judge to be up to speed with the law here in the U.A.E. for example, plus France, Germany, Sweden, and the UK. That is just not possible for a human being.
Ludmila Yamalova: Exactly. This is why this is important to talk about it, but also highlight while legally speaking the options are there, but practically speaking it may actually be very difficult to do for that very reason because ultimately you are educating a U.A.E. judge who is obviously a judge because he studied U.A.E. law and he knows U.A.E. law, to now learn and apply the law of a different country. Therefore, the burden falls on the parties that are trying to argue for the foreign law. Here it is a pretty high burden to meet because not only are you supposed to educate the judge, first of all you have to just present what the law is. It is not, hey judge, in France this is how it is done. No, you have to present the law. Every document you present in the court has to be legalized with an apostille. Let’s say if you are coming from France, which is a civil law jurisdiction, there would be a law on divorce. You would have to legally translate it and then apostille that whole law and bring it into the judge and say, your Honor, this is basically what French law says about divorce.
Tim Elliot: That’s going to be hard.
Ludmila Yamalova: Very hard, but it would be even harder if you come from a common law jurisdiction, like the U.S., for example, because there you don’t have just one legislative source to rely on. Common law, by definition, relies on court precedence. You would have to be bringing court cases, explaining to the judge how to piecemeal all of these different court cases into some kind of a theory you are trying to advance.
Tim Elliot: That is hard, but that is also going to be expensive, isn’t it?
Ludmila Yamalova: Very much so. It would be very expensive because, again, every one of the documents or the authorities you bring will have to be legally translated. That in itself is a cost because if you have a judgment that is 15 or 20 or 30 pages and just one judgment, but you also have to apostille every one of these documents. Those of us who live here know that there is a fairly hefty cost associated with every document that has to go through the apostille requirements.
There is another layer of complexity. Let’s say you are talking about a country like the U.S., the divorce laws in the U.S. differ among the states, so you will also need to figure out which state it is that you are claiming. You cannot just claim the U.S. law. It would be which state law. It is complex. Divorce proceedings, if you were doing them in the U.S., can be extremely complex. Now imagine taking that and trying to convince and educate the judge here, in a foreign language, what that means.
Tim Elliot: The complexity is such that you would fall in love with your partner all over again, wouldn’t you, the one you are trying to divorce? This is tricky to do.
Ludmila Yamalova: Perhaps that is the objective. Maybe that is a form of reconciliation or a form of mediation.
Tim Elliot: Whatever works.
Ludmila Yamalova: A lot of people do say that they choose to stay married because it is too expensive to get divorced. Perhaps this is a case in point. But from a legal standpoint, it’s important to highlight that the option is there. The option of applying a different law is there, but I will also tell you from a practical standpoint that every case that we have seen, and we have seen a number of these cases where parties want to argue, one or the other parties argues a different law, as they go through the process and start submitting these documents, or trying to at least obtain a certificated document, an apostille document of a particular law, that is just the document itself, but then you have to also explain to the judge what that means and educate them on the particular law. Before you are even able to start talking about the substantive law, you need to present a document that is apostilled that the judge can actually read and rely one, and that is before you even start educating and helping interpret what a particular provision means. By that time, at least from our experience, parties are so exhausted, they switch back to the default application of the law, which is Sharia law, and that is the personal status law. But the options are there.
Now, at a high level, what this means, because remember we talked about the two categories of issues at stake in divorce. One is about the commercial aspects of the relationship and the other one is about children. If you are applying for divorce under the U.A.E. personal status law, which is Sharia law, there is one disposition of those interests, and then if you are applying under the foreign law, then it will be very different disposition. At a high level, what this means, if you are applying under, let’s say, foreign law, in most cases as far as money is concerned, again, it depends on which law you apply, let’s say in the state it could be community property law. In other words, your assets are divided 50/50, all of your assets irrespective of in whose name they are, but it depends on the state.
For simplicity’s sake, if you have a foreign law and if one of the other parties wants to apply the foreign law, it is because ultimately that party deems to benefit financially much more so from the application of the foreign law than application of the U.A.E. personal status law. In other words, because commercially they would get 50% of what the other spouse has, irrespective of whose name it is in. For example, this would include the properties in your husband’s name, and if you apply foreign law, that property would be divided 50/50 irrespective of the fact that legally speaking that property is only listed in the husband’s name.
Similarly, under foreign law, in many cases you would be entitled to half or your spouse’s salary, bonuses, and end of service, and so on and so forth. Now, that is as far as money is concerned. This is a quick and dirty analysis of very complex laws, but commercially it would be 50/50. With regard to children, custody, and guardianship, under the foreign law in most cases, again, it will be 50/50. That is 50/50 on all fronts. That is the application of the foreign law.
Who would want to do this? Obviously it is usually, and I am stereotyping here to an extent, if it is the wife that is applying, she would want the foreign law because she will stand commercially to gain a lot more from the division of assets under the foreign law, but she would have to share the child 50/50 with the husband, which is basically standard in most other societies.
However, if you choose to apply or you are forced to apply, or you have come to the realization that you need to apply the U.A.E. personal status law, which is based on Sharia, there the division happens very differently. With regards to financial division, again at a fairly high level, it is very limited in terms of financial support. The general principle is that whatever is yours is yours and whatever is mine is mine. If your husband has a property that is in his name, you do not get any interest in it just by virtue of being married to him. Even if you have been married 50 years, you will not get a legal interest in that property, but equally so, if you have a property in your name, he does not get any interest in your property. The same thing with bank accounts. If you have a bank account, it is yours. If it is his, it is his. Your salary, your end of service, all of it is yours. Whatever is his is his. That is it basically.
Tim Elliot: Sorry. Let me just pause there for a second. In terms of bank accounts, if it is yours, it is yours. If it is his, it is his, is what you said, but what about if it is a joint account? What happens then?
Ludmila Yamalova: If it is joint, presumably with most bank accounts, it is 50/50 and jointly managed, so basically you are entitled to 50% of that and he would be entitled to 50%, and that is how that would be divided. Anything that is in your sole name remains in your sole name. The only financial obligation that would be the subject of a court order in most cases would be the father’s financial support of the children and to a very limited extent the mother of the children.
Tim Elliot: Okay.
Ludmila Yamalova: I say mother of the children versus spouse or ex-spouse because this is quite important, and it is because under Islam there is very limited alimony to the wife, and that is just for three months, and that is just called the waiting period to make sure that ultimately she is not pregnant during these three months. That is basically the element of support that the husband has to pay for his soon-to-be ex-wife. But after the divorce, there is a payment that is being made to her as the mother of the children, not as an ex-wife, but as the mother of the children. The children would get paid alimony to be specifically a support for the children. The father would have to pay X amount to support the children and then Y amount to the mother for supporting the children.
This is because with regards to children under Islam, the mother holds custody of the children and the father has guardianship over the children. This is a custody concept that exists under Islamic jurisprudence and not in the West. In the West, custody and guardianship is one and the same. In the U.A.E. or under Islamic jurisprudence, these are separate concepts. Guardianship is a legal right to make decisions for the child, for example, about school, about religion, about culture. But custody, which means physical possession of the child, means the children live with the mother. For boys it is until the age of 11 and for girls until the age of 13, so their primary house is living with their mother.
But that is not to say that the father does not have access to the children. Visitation rights would also be granted. That is not to say that the father can just travel with the children whenever he wants. There are still some regulations about who travels. Since the mother has custody of the children, the mother has the default right to decide whether the father can take the children out of the country, for example, or how to travel.
The issues of custody and guardianship are quite distinct under Islamic jurisprudence, so ultimately if you were to choose which law to apply, the Islamic jurisprudence, i.e., Sharia, the personal status law, or your own foreign law, it depends on where you are coming from.
As a mother, if you want mainly just the physical right to the children, applying the U.A.E. personal status law gives you basically 100% custody and rights to physically be with the children and only visitation rights to the father, but financially you don’t stand to get much more, and you will not get any interest in the assets or wealth that is attributable to your husband.
If you want more money that is attributable to your husband or just fundamentally you understand and you know and you want for the father to also have 50% (custody of) the child, then I guess foreign law would work as well because you accept and want the children to be shared equally, but at the same time you would have 50% of the assets of your husband’s wealth.
At a very high level, this is a quick and dirty analysis of rather complicated laws, but in practical terms it is difficult to argue foreign law. I think with time it will be possible more often. We do know courts are a lot more equipped here and a lot more comfortable applying the laws of certain countries, for example, the laws of India. There is such a large Indian population in the U.A.E. so the courts have seen more divorces where Indian law is being applied and so they are more familiar with that kind of law. American law is quite complex. We try to apply American law. We try to apply Australian law. We try to apply Russian law. It is difficult and ultimately the parties realize and don’t want to do it anymore. In many cases, they just finally agree on a settlement without having the judge to adjudicate. There is also that option. When you start contentious litigation, at some point in time it gets so exhausting that you come back to the table and you draw a map for a peaceful reconciliation. That also happens often.
But in other cases, and I think the majority of cases of divorces that go to the local courts will end up with a divorce under the Sharia jurisprudence or the Islamic jurisprudence. Additionally, now that the new laws have been recently introduced, there are also a number of guidelines that have been published, in particular for the personal status court, where the court has a fairly detailed map, almost like a roadmap, of how to divvy up assets and in particular how to assign alimony and child support payments. There is almost like a checklist. The court will apply these guidelines and these principles. In short, I will tell you, at a high level, the court will rule that the husband has to pay let’s say 2,000 to 3,000 dirhams per child per month towards child support and about 1,000 to 1,500 dirhams for the mother while the children are in her custody, and some amount for housing, for example, such as 100,000 to 150,000 dirhams per year for housing, let’s say 1,000 dirhams for the maid, 1,000 dirhams for the driver, some utilities. The father, by the way, as the guardian of the children, he has the obligation to pay for the children’s education, health bills, and more or less, the children’s expenses. That is a very quick snapshot of how marriages would be divided commercially and with regards to the children under the Islamic jurisprudence.
There is one more option that I said I would come back to when I mentioned before divorce abroad. It is also possible to have a divorce abroad, but you wouldn’t just have a divorce certificate, you would actually have a court order that sets out how assets should be divided. Then this would be a matter of actually trying to enforce a foreign judgment in the U.A.E. It may or may not be possible. We are heading more in the direction where it may be more possible than not, but there could be some questions of jurisdiction. If the court says, listen, we had jurisdiction here all along, so the divorce should have been under our jurisdiction, that foreign judgment might not be enforced. It depends. This is an evolving jurisprudence, right now very exciting times. But that is also an option because also there are a lot of families that may claim jurisdiction in both places. It is very likely that the U.S. courts would have had jurisdiction, and then you can come with the U.S. judgment here and try to enforce it here, and then you would have the assets here divided. But you would only want to do that, you would only want to enforce a foreign judgment in the U.A.E. if the parties have significant assets here and you would want the local courts to apply the foreign judgment to divvy up those assets, as per that court judgment versus the U.A.E. laws.
Tim Elliot: One thing I wanted to mention, Ludmila, I have learned from the number of podcasts we’ve done on the divorce topic, and there are a number of them. Amicable divorce is the most recent one you can find online. Mediation is encouraged here in the U.A.E. It is worth just remembering that. I am just pointing that out again.
Ludmila Yamalova: Yes, absolutely. That is the necessary step to any divorce proceedings in the U.A.E. Whenever you file for divorce, the first step that is by default to be scheduled by the court is mediation. There are mediation proceedings that will have to first take place before you are able to proceed to the court of full jurisdiction, and even along the way, courts often take a recess and encourage parties to do mediation. Yes, mediation is definitely encouraged. The efficacy of the mediation proceedings in the U.A.E. is still an evolving practice, but the intent is there.
Tim Elliot: Okay. That’s another episode of Lawgical, divorces, in this episode, for non Muslims. As ever, our legal expert, Ludmila Yamalova, the Managing Partner here at Yamalova & Plewka. Thank you again.
Ludmila Yamalova: Thank you, Tim.
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