Tim Elliott
Hello, everyone! This is Lawgical, the weekly podcast from Dubai-based law firm HPL Yamalova & Plewka. I’m Tim Elliott, speaking from the firm’s office in Jumeirah Lakes Towers, alongside its Managing Partner, Ludmila Yamalova. Great to see you again.
Ludmila Yamalova
It’s great to see you too.
Tim Elliott
This week, we were planning to discuss marriage and divorce in the UAE, but we simply don’t have enough time to cover both topics. So, we’ll focus on divorce today. For the sake of clarity and conciseness, we’ll be discussing divorce for non-Muslim couples. Divorce for couples identifying as Muslim will be covered in a separate podcast. Let’s imagine a scenario, Ludmila: a couple decides to separate. It’s a tough decision and a sad moment. But where should they begin in the UAE?
Ludmila Yamalova
That’s a complex question without a quick answer. Let me try to explain the basics. It depends on several factors: the couple’s nationality, where they were married, whether they have children, if they own any assets, the location of those assets and children, the type of assets, and so on. But in the simplest case, let’s assume it’s an American couple, both U.S. citizens. Let’s say they have one child, live here, and were married in the U.S. In this case, it’s relatively straightforward to determine the applicable law and jurisdiction for the divorce, which would be the U.S. However, this is the UAE, and simple cases like this are rare.
Most couples here are diverse in terms of nationalities and backgrounds. Often, spouses come from two different countries with different nationalities and may have married in a third country. Many even hold dual citizenship, and children are often born in entirely different countries. Frequently, children hold passports that don’t match those of their parents, and so on. In such cases, it can be quite challenging to determine where the divorce should be initiated and which law should apply.
Tim Elliott
Okay. Then let me ask this: can I choose where and under which laws the divorce will take place?
Ludmila Yamalova
Again, it depends on the circumstances. If both parties agree, then yes, they can choose. But if not—and let’s face it, we’re talking about divorces, which are often contentious by nature—it’s not always easy for the parties to align. They frequently have differing opinions, and reaching a consensus on the place of proceedings and applicable law can be difficult. By default, Sharia law applies in the UAE. However, the complexity of Sharia lies in its definition, as it applies exclusively to Muslims. That said, in practice, if a couple or one of the spouses chooses to approach the local courts for divorce, the default approach is for the court to first apply Sharia. The parties can consider this, and if they agree, the divorce will proceed under Sharia law.
In most cases, however, reaching this agreement can be challenging because Sharia may not always be acceptable to both parties, especially for women and mothers. They might prefer the laws of their home countries, particularly in matters of child custody. Under Sharia, custody is awarded to the father, while guardianship goes to the mother. In other jurisdictions, custody and guardianship are often split equally, 50/50.
Tim Elliott
Let’s consider the case of the American couple. Let’s say, hypothetically, that they were married in the U.S., lived in the UAE for a while, and decided to divorce in an Emirati court. If they are dissatisfied with the outcome, can they then decide to file for divorce again in the U.S.?
Ludmila Yamalova
This is an extremely complex and contentious issue because such scenarios do occur. The answer depends on how the divorce was handled and formalized. For instance, a divorce in the UAE might be executed as a settlement agreement. This differs from a court-issued divorce decree.
When filing in court, there are two ways to obtain a divorce certificate. The first is through a settlement agreement where the couple, after starting with differences, eventually negotiates and formalizes the terms of their separation. This agreement is then registered in court, resulting in a divorce supported by a mutually agreed-upon settlement.
The second way involves litigation, where the parties cannot agree and take the dispute to court. If Sharia law is to be applied, both parties must consent unless they are Muslim. If they don’t reconcile but agree to use U.S. law because they are both U.S. citizens, the local court can proceed under U.S. law. While challenging, it is possible for local courts to adjudicate divorce cases based on foreign laws.
Now, if we consider this scenario and have a court decision based on U.S. law, a dissatisfied party could later contest it in the U.S. For instance, bringing a UAE court decree to the U.S., involving American citizens and dissolving an American marriage, could be problematic. U.S. courts might be reluctant to enforce a foreign court’s decision, especially if the decision applies American law. The U.S. court may examine the decision to ensure it was correctly applied, making this a highly complicated yet intriguing process.
Tim Elliott
Let’s go back to basics for a moment. Let’s take the same example—a U.S. couple. They decide to divorce in the UAE. What does the procedural side look like? What steps must they take to initiate proceedings?
Ludmila Yamalova
The starting point is deciding where to file for divorce. Being in the UAE doesn’t automatically make it the natural place for proceedings. While it might seem convenient at first, nuances like the legal system and the language barrier—since all proceedings in local courts are in Arabic—could make the UAE less ideal. The first step is determining the jurisdiction.
In most cases, the best place for divorce is where the assets are located. You might get a divorce decree in the UAE, but if most of your assets are elsewhere, enforcing the foreign decree could be challenging. The ideal place to initiate divorce is where the parties’ interests are most concentrated.
If they proceed in the UAE, they’ll approach the family court in their emirate (e.g., Dubai). Either party will file an application to initiate divorce. By default, Sharia law applies unless both parties consent to a different law, which must be justified. If both parties share the same nationality and married in their home country, the opposing party could argue for their home country’s laws over Sharia.
The first step is mediation, facilitated by a judge, to help the parties reach a friendly settlement. This process often includes a cooling-off period before formal litigation. Mediation sessions, which can sometimes be conducted in English, are almost always mandatory before court proceedings. If the parties fail to agree, the court allows one party to file a formal case. However, the other party could still contest the court’s jurisdiction before formal proceedings begin.
Tim Elliott
Okay. Once formal litigation begins, joint assets—like a house, car, or yacht—come into question. What about liabilities, such as loans or mortgages? How does it work in the UAE?
Ludmila Yamalova
You mentioned two key terms: joint and liability. Under Sharia, each party retains their individual assets. What’s yours remains yours, and what’s mine remains mine. Jointly owned assets are split according to ownership percentages. For example, if a property is 100% in your name, I have no rights to it under Sharia.
Conversely, in jurisdictions like the U.S. or Europe, assets accumulated during marriage may be considered 50/50 joint property. In such cases, even if the house is 100% in your name, I may claim 50% ownership.
When it comes to liabilities, if both names are on a loan or mortgage, the liability is split accordingly. However, marital status doesn’t automatically make debts or assets shared.
Tim Elliott
Let’s talk about children. They’re neither assets nor liabilities, though some might argue otherwise. For our example of an American couple divorcing in the UAE under Sharia, how is child custody handled?
Ludmila Yamalova
Custody under Sharia is divided into guardianship (legal authority over the child’s welfare) and custody (physical care of the child). Custody usually goes to the mother until a certain age, after which it transfers to the father.
Tim Elliott
What are those ages?
Ludmila Yamalova
For boys, it’s 11; for girls, it’s 13. Judges in the UAE generally prefer to keep young siblings together. For instance, if a 12-year-old boy has a 7-year-old sister, both would likely remain with the mother to avoid separation.
Tim Elliott
Let’s sum up, Ludmila. How would you conclude this discussion?
Ludmila Yamalova
My advice to both parties is either to return to their home country and file for divorce there or agree to an amicable settlement here. Most couples ultimately choose the latter for convenience. My key recommendation is to prioritize the well-being of children and ensure the divorce decree can be effectively enforced regarding shared assets.
Tim Elliott
That wraps up this episode of Lawgical. We’ve been speaking with Ludmila Yamalova, Managing Partner of Dubai-based law firm HPL Yamalova & Plewka. Thank you for joining us.
Ludmila Yamalova
Thank you.
Tim Elliott: In the next episode of Lawgical, we’ll continue discussing divorce, this time focusing on Muslim couples.
