Tim Elliot: Welcome to Lawgical, the U.A.E.’s first, and only, legal podcast. Once again, my name’s Tim Elliot. Lawgical comes to you from the Dubai-based legal firm, HPL Yamalova & Plewka. As always, here is the Managing Partner, Ludmila Yamalova. Nice to see you.
Ludmila Yamalova: Good to be here, Tim, as always.
Tim Elliot: Today we’re going to be talking about divorce once again. Lots of different podcasts about divorce in its various forms at LYLawyers.com. This time though it’s divorce options for Muslim women in the U.A.E. There is a lot to discuss today, Ludmila, some principles of Sharia law to understand and explain. Can I begin here with the legal category of talaq? Now Article 99 of the U.A.E. personal status law is where I’ve picked this particular word, but it’s very important to understand what talaq is.
Ludmila Yamalova: Indeed. Let me just take a step back. I just want to highlight that for any family, any couple that resides in the U.A.E., if they are Muslim, this is the only law they would be able to apply with regard to the dissolution of their marriage and the terms of their divorce, in particular custody and guardianship.
This, by the way, applies also to all those expats who grew up in different countries, would have gotten married in different countries, and more or less, they believe they are subject to the civil laws of their own home countries, and not Islamic laws. However, as long as they are of Muslim heritage and they live in the U.A.E., they are deemed here to be Muslim and therefore they do not have a choice of law as far as personal status matters are concerned, and they are subject to the U.A.E. personal status law which is based on Islamic principles and Islamic jurisprudence, in other words, Sharia, with regard to the dissolution of marriage, i.e., the divorce, and the corresponding issues that result from the divorce, such as financial entitlements and support, as well as custody and guardianship.
Tim Elliot: Okay.
Ludmila Yamalova: That is important to remember because for expats otherwise there is also a choice of law that they can apply, and that choice of law is the law of the country where they got married, but for couples that are Muslim couples, even if they got married, let’s say in the U.S., England, France, or Australia, and they are deemed to have been married under a civil marriage, in the U.A.E. they would not be able to make that argument.
Now they are deciding to divorce. As is the case with non Muslims, there is always an option of an amicable divorce. We have covered amicable divorce in a different podcast, and that particular topic applies, and that option or route applies to both Muslim and non-Muslim couples. Amicable divorce is always an option, and I would always highly recommend that to everybody. Take a step back, breathe, regroup, and try to figure out an amicable divorce because it is extremely expensive and emotionally consuming and taxing and psychologically very all encompassing and tumultuous to go through court proceedings for a family or couples that are already separating and then having to adjust their whole lives, especially if there are children involved. If you add to that all of the battling in court and all the expenses paid to the lawyers and such, it is a very, very taxing and very tumultuous and difficult process. It easier said than done, but whenever it is possible, I always recommend that people take a step back, breathe a little bit, process, and just remember and most importantly, identify what are the most important things that they are fighting for and what is the objective. The objective, if you have children, should be the best interest of the children, so whatever it is that you do, you should be doing it in the best interests of the children. Then financially, that would come next.
I am sitting here today, with Tim in my office, theorizing about this. I know it is easier to say this than for those that actually find themselves in that situation. The emotions run wild and it is very difficult to accept that there could be some sort of an amicable dialogue. As we have discussed in previous podcasts, and as you are about to hear in this podcast, there are so many legal tools and nuances and factors that will always be at play whenever you file a court case that often we see couples that at some point in time they decide, after all of this fighting in the court, let’s sit down and figure out an amicable way forward. If you could just remember that and try to at least take a piece of that and try to bring it a little closer to the forefront of your divorce proceedings, that would help everybody a lot.
Tim Elliot: We have talked about this before at some length, if you can do that. It is very hard and nobody is trying to tell anybody what to do, but making a process a little bit easier is a logical, sensible thing to do, and is part of your remit, to offer every option.
Ludmila Yamalova: Absolutely. Be as it may, the reality is such that in most cases people cannot agree, and therefore they find themselves at a crossroads where they have to file a case. Back to our Muslim couples and families who find themselves not at these crossroads, and they need to do something about it.
At a high level, there are two types of divorces that are available for Muslims. One is called talaq, as you rightfully said, Tim, early on, and the other is khula, and with both of them in general, the divorce would be subject to the U.A.E. personal status law. Talaq is covered under Article 99, for those who want to look it up, and khula is under Article 110 of the personal status law.
These are the two types of divorces. Basically, at a very high level, talaq is the divorce for a cause. Whenever you have a divorce for a cause, there are expectations and claims of damages that would be awarded. Then khula is basically is a divorce for no cause and you are not really expecting or claiming any kind of compensation.
Before going into divorces, I do want to make a general statement, because we hear this, slightly less now than we did before, but there is a fear, particularly in women, that the court will not grant them a divorce, basically it is for the husband to allow them to divorce and/or for the court to allow the divorce, and there is a good chance that the court might not grant the divorce at all. In other words, they have no choice to divorce. That is not necessarily the case. It is true that there are certain legal nuances that if they follow a certain path that divorce could be denied, but it’s not finally denied. It’s less about the divorce being denied. It is based more on the claims that are being made as part of the proceedings and the documents and claims that are being presented along the way. But ultimately divorce will be granted. I have yet to see a single case where a woman would not have the right to be divorced. Again, it is through various legal machinations, nuances, and tactics that it is sometimes possible to have certain decisions where the court will say, okay, you are not divorced, but the husband has to do this and that, but then you can still always, as a woman, always apply for another divorce and you will be ultimately divorced. Basically, this particular topic comes up when we are talking about legal nuances and when we are talking about whether a divorce is talaq or khula.
Talaq is basically the right under talaq, and again, this is a divorce for cause, the husband has a unilateral right for divorce under talaq. The husband says, I want to divorce you. This is it. You don’t need anything else. You don’t need agreement from the wife, but it still needs to be ratified in court in order for it to be formal. The husband has, in other words, the universal right. However, the woman can also claim talaq, but in order for her to claim talaq she needs to show damages that she has suffered as a result of the broken relationship. For the husband to claim talaq, he does not need to show any damages. The woman has to show damages. Damages is a bit of a convoluted phrase. Simply in most cases you don’t really have to prove any kind of damages, but that is the legal technicality. The husband can say, I divorce you and that’s done. The wife has to say, I want to divorce you and this is because you are this, and this, and that, and as a result I claim one, two, three, four, five. That is the procedural difference that you would have to proceed on.
I want to pause here for a second because we often hear of husbands unilaterally divorcing wives under Islam, and that is where talaq comes from. Because talaq is the unilateral right for a husband to divorce his wife, and we hear a lot of the times, my husband has divorced me a bunch of times, or he has already divorced me. I want to be very clear that in the U.A.E., while the jurisprudence in the U.A.E. personal status law is based on principles of Sharia and Islamic jurisprudence, it is still a civil law country and has a civil law legal system, which means it is not a Sharia law system in legal terms. That is a big difference. When the husband, for example, say three times, “I divorce you”, maybe in other countries that are more Sharia-based countries or Islamic countries in terms of the legal framework, that would be it and that is all that needs to be done. In the U.A.E., because it is a civil law country, you actually need to have a court order ratifying the divorce.
Tim Elliot: Okay.
Ludmila Yamalova: This is very important because we have heard of so many cases where the wife says, okay, but he divorced me three times and therefore under Islam we are divorced. Perhaps, but what is the proof? You need the proof for that. The only actionable and enforceable proof is a divorce decree. Sometimes if you have witnesses, you can say, I have witnesses. There were three male witnesses that heard him say “I divorce you” three times. That could have happened as well, but then you still need to bring those witnesses to the court and the court still has to issue an order saying, yes, based on the statements of these witnesses, he had divorced her in Islam, and therefore, now you are divorced formally. In other words, if you are a Muslim woman, and you think you are being divorced by your husband because he is claiming talaq and telling you three times that he divorces you, don’t rely on that because it is not enforceable in the courts here, and we have seen a lot of cases where a woman, for example, would go around and say, okay, I am divorced now so I can live my life as a free woman, and then the husband out of spite comes back and claims that she has been having extramarital affairs and so on and so forth, and the woman does not have anything to prove that she in fact was divorced. This is very important that in the U.A.E. you know that even if you are being divorced under talaq by your husband, then you need to file a claim and go say this either in front of the court or bring three witnesses to show that you have actually divorced me already. You need to have the court document.
We had a case recently. A prospective client called us and said her husband had divorced her 50 times, but then every time she actually wants to act on this divorce, he says, I didn’t divorce you. There are obviously people acting in bad faith and being abusive, but here is an example for you. Even though it was 50 times, in legal terms it is a non event. That is for the husband to divorce under talaq. He would therefore say, “I divorce you under talaq, so I don’t need approval from you”, and it is divorce for a cause. Ultimately, all that means is that under Sharia, it is a little less about who is at fault in terms of what your final takeaway will be.
Let’s say in other Western jurisdictions where the assets are divided 50/50 and the custody of the children is 50/50, there is a lot more to fight for. But under Sharia, it is whatever is your is yours and whatever is mine is mine. For a husband, usually a husband has more wealth in this country, so if he claims talaq there is not really much for him to claim from his wife. He would not have been able to claim anything from his wife. Maybe he can ask for some damages, but damages are very difficult for a husband to prove. That is for the husband to do.
For the wife, she can also claim talaq. Again, talaq is a divorce for cause. In marriages and in most of the families, when a wife files for divorce, she says, I am claiming talaq but I basically need the court’s approval for talaq. It is a divorce for cause, and as a result, I suffer damages and I want compensation, compensation for the children, compensation for me, and such. That is basically a wife’s claim for talaq. Proving it comes down to proving it in court what it is that you have suffered and what it is you want from your husband or from the father of the children. Sometimes, interestingly enough, there is one nuance. It is possible, in fact, for the husband when couples get married, in Islam, it is actually possible for the husband to early on give the rights, give the delegation powers basically for unilateral talaq. In other words, the husband can in advance give the wife, when they get married or at some point in time, to say, “listen, I give you the right of talaq, for unilateral talaq”, and that would be enforceable
Tim Elliot: How would you document that?
Ludmila Yamalova: Like a prenuptial agreement.
Tim Elliot: Really?
Ludmila Yamalova: Yes, yes. These agreements are actually fairly common. You would want to ratify with an Imam, or with some kind of a religious document, or in the court, but yes, that is how you would do it. That delegation does not deprive the husband from the unilateral right of talaq, but he gives his wife basically the same right. That is possible.
Tim Elliot: Right.
Ludmila Yamalova: Now with regard to the wife claiming talaq, she would be claiming this is a divorce for cause, and as a result, she wants damages from the husband. Then she would request all sorts of things, but one of the things she would ask for is compensation for the waiting period or iddah. This is alimony for three months. That is the waiting period, and it is usually the time the court would want to wait to see that the wife is potentially not pregnant again. That is the waiting period. That is probably the maximum the wife would get financially from a divorce under Sharia. That specific payment is to her, and that is about three months of compensation. The compensation could be 10,000 dirhams a month, for example, but for three months only. Then she can also claim compensation for enjoyment, and that is for enjoyment while they were married, and in really depends on how long they were married. If the husband had been paying the wife every month, let’s say 5,000 or 10,000 dirhams, she can claim that he should continue to do that and as a compensation for enjoyment, he should continue to pay that. But usually compensation for enjoyment is more limited and a fixed amount. Also, any deferred mahr, and mahr is basically a dowry. Usually what happens, a lot of Muslim couples when they get married, the husband has a choice to pay mahr, and mahr is a dowry to the wife, and the husband says, in the event of divorce, I will pay you half a million dollars, or I will give you my house in Lebanon, for example. That would be mahr. When a wife claims talaq, then she would be entitled to that mahr. She would be entitled to the house in Lebanon or the half a million dollars, whatever is stated basically in a prenuptial agreement. These agreements are quite typical in Muslim couples as well. That is the other thing that she would claim.
Then she would claim custody of the children. Under Islam the custody of the children goes with the mother, and guardianship goes to the father. Under Islam the mother gets 100% custody for boys until the age of 11 and girls until the age of 13. However, in practical terms, the courts are very reluctant to separate kids, so if the boy reaches the age of 11 and the girl is still 8, the courts often do not separate the kids. The custody doesn’t just automatically transfer to the guardian, the father, when the child reaches that age. The courts are still involved in this, and the court ultimately can decide to keep the children together. It is not an automatic default or transfer of custody, and custody is the physical possession of the child. Custody would stay with the mother which means that the children’s primary home will be with the mother for custody, and then the father, as the guardian, has to pay the mother for supporting the children. The father as a guardian has to pay for the children’s education, has to pay for the children’s expenses, has to pay for housing, has to pay for the driver or the nanny, and X amount every month for the children as child support. Then additionally, and this is under talaq, the father would have to pay the mother a monthly compensation, but it is not to her as his wife, but rather as the custodian of the children.
The courts in the U.A.E. these days have fairly specific guidelines that were recently issued, a roadmap in terms of how the courts goes through deciding how to allocate compensation for child support per month, for support of the mother, for housing, for transportation, for additional expenses, and the court follow those guidelines pretty closely. They are definitely still based on the husband’s actual earning powers and such, and that is what is being used for the most part these days be the courts, and it is fairly transparent, so those parties who are thinking of divorce, they can access those guidelines themselves and anticipate how the courts will decide.
Then there is some additional compensation. If the mother is still breastfeeding, she can claim compensation while she is breastfeeding. These are the requests that must be made by the wife to the judge in a statement of claim because they are not awarded by default. When the wife claims talaq, she claims, I am wanting to divorce my husband for cause, and I want compensation for all of these different entitlements. That is talaq.
I will give you an example. We have seen a few cases recently where a family of let’s say two minor children, and the judge would give about 2,000 to 2,500 dirhams per month for every child and about 1,000 to 2,000 dirhams for the mother as the custodian of the children, about 150,000 dirhams per year for housing, maybe 50,000 to 80,000 for the car, and 1,000 or 1,500 for the nanny, and about 1,000 for the driver, for example. This is how specific the court order would be ultimately. The father would have to pay all of this, and if he doesn’t, then this becomes quite enforceable and fairly quickly, and so the courts can freeze bank accounts. This is what we have seen over and over again. The father, for one reason or another, does not want to pay alimony because he wants to fight for something else, or in particular, he wants to see the children more. Once you have a final judgment from the court, you actually can proceed with enforcement, and as part of the enforcement, you can freeze bank accounts and other assets of the faulty parent, i.e., the father in this cause. Surprising enough, a lot of people still do that, and you need to prepare for it.
But also, as part of the court order, in addition to the compensation, the court also can set the visitation schedule and rules. For example, if the mother accused the father of being abuse or neglectful, the father can visit the children X number of hours over a certain amount of days before the Community Development Authority (CDA) under some supervision. These kinds of conditions can be put forward as part of the divorce decree.
Financially speaking, the mother/wife does not benefit under Sharia law as much as she might have under foreign law where should would have gotten 50% of her husband’s earnings, end of service, bonuses, and any assets in his name would have to be divided 50/50. But from the perspective of custody of the children, she has the right to the children. They will live with her full time and she is primary custodian, and therefore she decides when they travel, how they travel ultimately, and she can deny the father the ability to travel with the children. He basically needs the consent of the mother.
You see, there are so many nuances, and this is why I am coming back to what I said earlier. It would always be better for the parents to build an amicable foundation for the relationship so they don’t have to always tug and pull each other every time they plan to take the children out of the country for holidays and such, which is what we’re seeing a lot now. We also see it is quite painful. We see so many families fighting this tooth and nail in court and the mother is typically so scared about the wellbeing of the children and during the proceedings the father does not even see the child, and the mother has the ability, at least to an extent, to prevent the father from seeing the child. It really does not benefit anyone.
That is why I circle back to what I said earlier. If there is a way, it is important to keep that in mind that in the long run, if you have children, your main objective has to be how to build a common road forward for the children for the benefit of and in the best interests of the children. If you can keep that goal in mind, eventually as the temperature dies down, it is possible that both parents will be able to figure out a more amicable approach to agreeing on the terms, by the way, that would be more beneficial to the father for visitation rights. You could, if you are agreeing with the mother and being amicable, she could give you more preferential visitation rights. She could even agree to the 50/50 in terms of child spending time 50% of the time with the father, but if you do not have the mother’s agreement, then it will be up to the court, and the court will give you the minimum, the floor, which is the child will live with the mother and the father will have limited visitation rights. That is talaq.
Tim Elliot: That is talaq. Okay. Let me just pause here. It’s so incredibly intricate. You come back once again to trying, if in any way it is possible, to sit down and try to work something out, I think it is worth reassessing that once again. What of khula, which is Article 110 of the U.A.E. personal status law? This is – correct me if I’m wrong how I’ve read it – when a husband can sense his wife’s request for a divorce, are there five ways in which this is permissible? Am I close?
Ludmila Yamalova: Yes. Yes. But ultimately khula is a contract between a husband and a wife in which they both agree for the wife to provide compensation to the husband in the event she wants a divorce. Here, ultimately, she does not need to request the husband’s permission to divorce. Under talaq, the wife has to request the court’s permission to divorce. Under khula, she does not need to do that, but she needs to compensate the husband.
Now, how do you calculate compensation? Usually when there is mahr, mahr is a dowry that is part of the contract that the husband had given to the wife, for example, a house in Lebanon as mahr, and so that is her house. But as part of khula, she would have to give that compensation back.
There could also be some payments he made for her and he can make a claim for compensation of that. It is not easy to prove compensation because often what we see is the husband starts claiming the jewelry he gave, the bags he bought, the clothes, and in most cases the courts will view those as gifts and nonrefundable, but it depends on how you argue it. But ultimately khula is the wife saying she is divorcing him, she does not care or need to show damages or cause, she just wants a divorce, and she has the right to divorce him, and she will pay compensation to him. The most measurable compensation is mahr. If there was mahr, then she pays that back to him, if that is what the husband wants.
But what they cannot do under this, they cannot agree, for example, to waive the child support under mahr or under custody. Even though it is khula, the husband cannot take the child and have the child in his custody, because the default application of custody is that the child stays with the mother, nor can the husband refuse to pay for the support of the children. The principle of khula refers more to financial entitlements, but with regards to the children, the same Sharia principles will apply that custody stays with the mother, the guardianship with the father, and by virtue of that the father is the one responsible for paying child support, for paying for education, for supporting the family, housing, and all that, so that cannot we waived even under khula.
Essentially khula is like a termination of the marriage contract, at a high level. We have seen cases of khula as well, like I had mentioned earlier, sometimes you hear of these cases where the judge says there is no divorce because it really comes down to what is being claimed. Often what is being claimed is the wife says she wants the children to stay with her or she wants the father to pay for their education, so the request for divorce is more implied than explicit. In any event, the wife always has the option of filing a request for divorce under khula, and that means she does not want anything from him as a wife, and she will give him back mahr, if there was any, or the judge can decide if there should be some compensation, but the father will still be responsible as a guardian of the children and for their support.
Tim Elliot: We have limited time in this podcast, Ludmila, and we have covered most of the areas, but I would just like to ask you about procedure. How does this work when you are in court?
Ludmila Yamalova: One of the blessings of COVID and I have said this in many previous podcasts, is that the U.A.E. courts have become more accessible technologically and practically much more accessible to the parties. You can file the divorce proceedings and requests through the online court portal. You can go directly to court and whatever hearings will happen and sometimes it can be online and sometimes it can be in person. You can even bring witnesses online. It is a lot more flexible now that it used to be. Apart from the first few meetings in divorce proceedings, more or less everything happens in the online platform, all of the decisions are published online, and it is quite efficient. There could be some mediation processes in the beginning, but mediation is more procedural where the courts want to document that there at least was an attempt to mediate, and then a transfer of the case to the formal court jurisdiction.
Otherwise, it is not extremely lengthy or complex. It could take a year, but it depends on what claims are being made and such, and there are things that could happen in the meantime. For example, either parent could request a travel ban to be put on the children, so one or the other parent does not take the children away from the country. That is one of the measures that parents exercise here, especially in contentious divorces. It depends again on what kind of claims are being made and what is being argued in the proceedings. You have the Court of First Instance and you have the appeal, but you can always file a new case for divorce at any point in time, so if you are still not divorced, you can always file a new case. It is more or less accessible and not extremely lengthy, and it does not have to be extremely expensive, especially for Muslims because you are not arguing foreign law, which, in and of itself, would be a lot more expensive, as we had discussed in a different podcast. That is basically that. It is fairly effective, and the process is fairly transparent because of the guidelines that have been published recently. The parties know what to expect. The decisions of the courts are fairly predictable in how they adjudicate these issues, and that is in line with what I just described.
Tim Elliot: Still a process that takes a lot. I’m listening to you there, trying to get my head around it, but it is certainly a bit clearer. That is another episode of Lawgical, this time the divorce options for Muslim women in the U.A.E. specifically. Our legal expert, as always, the Managing Partner here at Yamalova & Plewka, Ludmila Yamalova, a huge thank you.
Ludmila Yamalova: Thank you, Tim. Always a pleasure.
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