Ludmila Yamalova: Welcome and welcome back to Lawgical with LYLAW. This is Ludmila. In the previous segment, we covered the topic of marriages in the U.A.E. In this segment, we will discuss divorces in the U.A.E.
In general, divorces are a very complicated subject in the U.A.E., not only because of its emotional aspect, but also from the legal standpoint. One reason is because of the many different types of marriages that exist in this region. Another reason is the many different types of laws that can be applied to divorces. With regard to the applicable laws in the U.A.E., much depends on the type of marriage. In general, however, the default law is the U.A.E. personal status law or family law which is in turn based on Sharia. However, under Sharia, Sharia only applies to Muslims. Therefore, by extrapolation, the non-Muslims are governed by laws other than Sharia. The U.A.E. federal law also makes it clear that non-Muslims can also choose the laws of their countries to govern their divorces. For non-Muslims, it’s the law of their country that would apply, however, that presents another problem and that is one of local courts applying foreign laws.
With regard to the exact laws that apply to divorces, much depends on the type of marriage. For Muslim marriages, by default, the applicable law is Sharia, or in the U.A.E. it is personal status based on Sharia. For non-Muslims, it’s the laws of the parties that they wish to apply. However, for non-Muslims living in the U.A.E., they also can opt for Sharia to apply to their divorces. This is because a default law applying to divorces in the U.A.E. is one of personal status, which is based on sharia, and therefore, should expats decide to divorce in the U.A.E., they can ask the court to have Sharia apply to their divorces.
With regard to the divorce proceedings, much depends on whether the proceedings are contentious or amicable, and that, of itself, depends on the types of marriages. Let’s start with Muslim marriages. If it is a Muslim marriage, then the husband can divorce without a formal court order, whereas the wife requires a court order. With regard to the specifics of those proceedings, a husband can divorce a wife orally in the Muslim marriage. There is however a three-month waiting period and during these three months the husband can recall the divorce. One important element of oral divorces is that of proof. Therefore, it is highly advisable for parties to hold off on acting on their divorce until it has been properly registered with the courts, and this is because oral divorces are difficult to prove. Even if such a divorce took place in the presence of witnesses, which is otherwise required before the courts, the witnesses may potentially refuse to witness or attest before the courts later on, so therefore it is highly advisable that parties do not rely on oral divorces and instead seek confirmation from the courts that their divorce has been final.
A husband can also divorce his wife before the courts. This is done through a simplified process. Instead of filing a formal court case, it is more of an application for divorce. It’s a much more simplified and streamlined process. In general, the requirements that apply to such divorces is that the husband appears before the judge in the presence of either both parties, or if the wife is absent, then he indicates in the court papers her address. The husband requires two Muslim witnesses and presentation of identification, passport, and emirates ID, and marriage certificate. If there is a settlement between the parties, then the wife is actually required to be present in these proceedings.
If a wife wants a divorce in a Muslim marriage, the process is somewhat different. For the wife to file for divorce, she has to do so through the courts. She cannot do it orally. It has to be a formal court proceeding which amounts more to a contentious divorce than amicable. For her to file a divorce, she has to present in court the various identification documents, the marriage certificate, and depending on the claim she also needs to present witnesses. In general, for a divorce by a woman, the court has to approve such a divorce.
The final type of divorce in Muslim marriages is one by agreement or by mutual consent. In such cases, the parties will come up with a settlement agreement that outlines the respective rights and obligations, and such settlements should be registered with the courts. The settlement agreement, however, cannot include the issues of guardianship and custody with respect to the children. This is so because the issue of guardianship and custody are governed by Sharia. By recap, guardianship stays with the father while custody follows the mother. That’s with regard to Muslim marriages.
With regard to divorces between non-Muslim couples, the process is twofold. Because the issue of divorces is governed by the personal status law in the U.A.E., which in turn is based on Sharia, the default law that applies to divorces is that of Sharia, and that applies as well to non-Muslim couples. That is just by default. Therefore, non-Muslim couples can always opt for Sharia to apply to their divorces. Such divorces, however, have to be agreed by both parties. In other words, if a husband wants to apply Sharia to their divorce, the wife has to agree. If the parties want to choose a different law to apply to their divorce, they have to notify the court which law they want to apply. This is where it gets very complicated and this is because so many couples in the U.A.E. are so culturally mixed. Parties can be of different nationalities. Their children can carry yet other nationalities, and the marriage itself might have been registered yet in another country. Therefore, often issues come up with regard to which law parties want to apply to their divorce.
Let’s say a husband could be an Irish citizen, the wife could be a French citizen, and they might have gotten married in the U.S. The question will be which law they want to apply. In a noncontentious divorce this is a simpler process. The parties just agree to which law they want the courts to apply. But for a contentious divorce, you can imagine, parties argue about what law they may want to apply just by way of leverage.
Another issue, even in cases where parties can agree on the law that should apply to the divorce, is where there is only one choice of law because all parties have the same nationality and the marriage took place in the same country. In such cases, the complication is that the parties are asking the local courts here in the U.A.E. to apply a foreign law. There are a number of complications related to that. (1) One is related to language. In the local courts all the proceedings are conducted in Arabic. Therefore, all documents that are presented will have to be translated into Arabic. They will have to be translated legally with all the required apostille and legalization notarization stamps and requirements. That in and of itself is a fairly costly and lengthy process. (2) Another, even more complex issue is one of asking a local judge, a U.A.E. judge, to apply the law of a different country that has been translated into Arabic. Even more complex issues, for example, common law, because in common law in countries like the U.S. and the U.K. for example it is not just the law that has been codified in the book that should be presented to the judge. In such cases, there could be the law itself and the many court cases that are supplementing that particular law. It’s a very complex issue and therefore asking a judge that is not experienced in applying common law to be applying common law and applying in the Arabic language is a very complicated issue. Then obviously, there is always a conflict of law because some parties may want to file for divorce in a different jurisdiction. For example, that same couple of Irish/French nationalities, one of the parties might have filed the case for divorce in a different country, so there could be parallel proceedings going on at the same time. In these parallel proceedings, you might ultimately end up with two court judgments coming from two different jurisdictions that may conflict with one another.
With regard to the terms of divorce, they can be ruled by either court or by settlement. It also depends on whether the divorce was done under Sharia or under some other civil laws. Let’s talk about the Sharia divorces first. There are really two major terms in all divorces that are in play: (1) related to compensation and (2) related to children.
With regard to compensation under Sharia the only compensation that is due is one that is mentioned in the original marriage contract, otherwise known as dowry. That is, in the divorce proceeding, the husband is required to pay whatever was mentioned in that marriage contract under dowry to the wife upon divorce. Certain marriage contracts have very minimal dowry, for example, just a wedding ring. It’s not so that the marriage contract always specifies very clearly a handsome settlement payment. There is also limited alimony in addition to dowry. Limited alimony usually is about three months of payment and that is during the three months of settlement before the divorce becomes final and also, depending on the circumstances, there could also be an additional six-month compensation to the wife.
In most cases, custody follows the mother, and therefore then the father has to pay alimony for the children as long as they remain in her custody. All assets remain in the respective names of the parties. Therefore, for example, if the wife owned a particular villa or a particular car that was used by the family, those assets remain in the name of the wife, and equally so whatever assets were owned and registered exclusively in the name of the husband remain the property of the husband. Assets that are owned jointly, those shares remain in the respective names of the owners. Therefore, let’s say if there was a house that was owned jointly by the parties, upon divorce it is not true that the wife’s share goes to the husband or the husband’s share now goes to the wife. Those shares remain respectively in the name of the parties. It’s up to the parties then how to administer that particular asset in order to move forward.
With regard to the children in Muslim marriages, and therefore divorces, children are always subject to Sharia. Under Sharia, guardianship and that is the longstanding legal right to the children, always follows the father. That means that the father will always have the right to make long-term decisions for the children. If the father is not available, it usually follows some other male relative in the father’s family.
With regard to the custody, the custody stays with the mother, custody being physical possession of the children. Usually boys under the age of 11 and girls under 13 stay with the mother. In practice, however, in the U.A.E. the courts most of the time use the age of 13 for both boys and girls and give mother custody for the kids until that age, irrespective of the gender of the kids. Sometimes the U.A.E. courts also grant custody to the mother until the age of 18. Very frequently the courts tend to give custody of all the children to the mother so as to avoid separation of the children. This is as far as Muslim marriages are concerned with regard to divorces.
For divorces that are governed by non-Sharia law, then obviously it is the law of the respective country that is being applied, in that case the law will apply to the issue of both compensation and children. For example, if a particular law, let’s say Austria mandates a 50/50 split between the spouses, then the courts will grant that kind of division as far as the assets are concerned. The same thing with the children, but in most other nonreligious application of divorces the custody and the guardianship reside with one parent. There is not really a separation between custody and guardianship, and so therefore, that right for the children goes with usually the mother, but if the mother is not available, whatever the original law would mandate. This is the process for applying for divorce inside the U.A.E.
Should the parties want to apply for divorce outside of the U.A.E., they will later on have to attest the divorce decree in the U.A.E. For example, parties have secured a divorce outside of the U.A.E., let’s say in the country of Ireland. Then they will want to enforce that court degree in the U.A.E. It’s a very complicated process because it relates to the enforcement of a foreign judgment that may call into question a conflict of laws on many different levels. That’s from a legal standpoint. From a practical standpoint, the risk is that during these divorce proceedings one or the other spouse might have liquidated all of the assets. They were residing in the U.A.E. and at the time of enforcement of the foreign judgment the parties against which the judgment was being enforced may no longer hold any assets in his or her name.
By way of recap, divorces in the U.A.E. is a very complex subject. That’s for both emotional aspects and for legal and practical ramifications. Some of the critical factors to keep in mind are (1) whether the marriage was Muslim or non-Muslim, (2) was the divorce amicable or contentious, (3) what laws are being applied and how, especially when there are foreign laws and potentially there may be multiple foreign laws, (4) the form of divorce, whether it’s a local court judgment or a foreign court judgment, and (5) the status of assets, meaning the movable and non-movable assets that may exist in the U.A.E. that would be subject to the divorce proceedings.
Important issues to remember are that with regard to compensation, for Muslims all assets remain in the names of the respective parties. For non-Muslims, legally the assets may be divided as per the laws of their countries, but in practical terms if the assets are based in the U.A.E. by the time the divorce is being registered in the U.A.E., the assets might have been transferred and there is really no way to freeze those assets during the divorce proceedings. With regard to the children, for Muslims there is an issue of guardianship versus custody, for non-Muslims it’s as per the laws of their countries.
Therefore, as general advice for couples that are considering going through a divorce, the best way forward, as difficult as it may sound, is to try to agree on an amicable settlement so as to avoid these varied nuances and complications that exist in divorces in general and in the U.A.E. in particular.
This brings us to the end of our segment on divorces. Thank you for listening. I hope you enjoyed this segment. Please tune in for our next segment discussing the issue of inheritance and probate. This is Ludmila with Lawgical with LYLAW. Thank you for listening.
Hanan: Hello. This is Hanan. Thank you for listening to our Managing Partner, Ludmila Yamalova from HPL Yamalova & Plewka DMCC. If you have any further questions or would like any specific clarifications, feel free to contact us at info@Lylawyers.com. You can also find other ways of contacting us on our website, www.Lylawyers.com. That’s all for now. See you next week.
