Tim Elliot: Welcome to Lawgical, the U.A.E.’s first, and still the only, legal podcast. My name’s Tim Elliot. Lawgical is brought to you by the Dubai-based legal firm, HPL Yamalova & Plewka. As always, here’s the Managing Partner, Ludmila Yamalova. Good to see you.
Ludmila Yamalova: Good to see you too, Tim, as always.
Tim Elliot: Ludmila, our last two podcasts both covered how to get a birth certificate for a child despine being unmarried. This time, let’s put together a roadmap, breaking down the steps required to work through the process. There have been lots of changes obviously to Article 356 of the Penal Code. That’s where this stems from. But my first question to you has to be, where do we start? What’s the beginning of the procedure?
Ludmila Yamalova: The beginning of the procedure is the federal regulations which set out the requirement and the roadmap to follow if you find yourself in the situation of either giving birth without a marriage certificate which is less than six months from the time the marriage is registered and the baby is born, or if the marriage certificate, for example, is invalid, or any other circumstances. The regulation is the starting point.
As for per the regulation, in short, a formal court process is required to be filed in order to request for the birth certificate to be issued. It is the U.A.E. Ministry of Health that is ultimately the issuing authority for all birth certificates. Previously, in fact until not long ago, depending on the emirate, in some of the emirates there is also their own health authority, for example, in Dubai there is the Dubai Health Authority (DHA), and previously those authorities also issued the birth certificates. As of just a few months ago there has been a change, a Circular that now has given the authority to issue birth certificates across to country, across the U.A.E., exclusively to the Ministry of Health.
The court case has to be filed or addressed, at last one way or another, either directly or indirectly, to the U.A.E. Ministry of Health because it is the U.A.E. Ministry of Health that will ultimately issue the birth certificate.
Now the type of case that it is, it is not your typical full-fledged court case. It is an expedited judicial tool which is called an order on petition. An order on petition, in legal terms, not only is it expedited, but it is also called an ex parte proceedings, which means that when we file a case, the party against whom you file does not get served until the decision is issued. This is important because often a lot of time is spent and quite a bit of resources in trying to serve the other side. Here, that is not the required step. Once the court reviews the documents and decides this is within their jurisdiction to respond, they issue an order, and then you have to serve the order on the other side. That is an order on petition, an expedited judicial tool that is filed ex parte.
Not all cases can be filed under this legal umbrella. It is usually cases that are more clear cut, that are more definitive, or perhaps even more administrative and not so much substantive in their nature in terms of the merits of the case. It’s not for all cases.
Now, for an order on petition, there are different categories or subcategories in which you file under that one general umbrella. The tool you are using is an order on petition, but it is an order on petition for what?
- One option for purposes of the birth certificate is what is called proving of lineage.
- The other one is proving of marriage.
So, it is an order on petition for proving or lineage, or an order on petition for proving of marriage or an order on petition to issue a birth certificate, which is what we did in one of our cases. That is called an order on petition for ultimately a proving of lineage, particularly where you have perhaps a dispute with the father of the child.
It is through this process that ultimately initiates the application for the issuance of the birth certificate.
Now as part of it, what’s important to highlight because it is an official formal court process that involves the U.A.E. courts, anything that is done through the courts has to be done in Arabic. All of the documents that are submitted and the requests themselves have to be done in Arabic, including the request in the submissions and whatever statements you want to put forward.
That is one, but importantly, everything these days, for the most part, is done online. You need to set up your own court access. If you are a resident in the U.A.E., the way to set up court access is that you first activate your U.A.E. pass. To activate your U.A.E. pass, you need to have an Emirate’s ID and a smartphone. If in the past you had to go to different physical kiosks to register yourself, you no longer need to do this. You can do it all through the phone. You need to activate your U.A.E. pass, and it has to be verified and confirmed. Once you have done that, then with this U.A.E. pass, you can set up your own court access. Once you set up your own court access, then through the court access there are different services on the various court websites. You look for the order on petition request, and under the order on petition there are different subcategories, such as proving of lineage, proving of marriage, requesting a birth certificate, or just a general one if you cannot identify a specific category.
One more thing is whenever you apply for the order on petition, the fees to the court are fairly minimal, which is very important because many people who find themselves in a situation of not being to get a birth certificate because they do not have a marriage certificate often don’t have the funds to initiate protracted and expensive legal proceedings.
Tim Elliot: When you say fairly minimal, what do you mean?
Ludmila Yamalova: We are talking about 50 dirhams to 100 dirhams. So, yes, they are really inexpensive. It depends. There are a few nuances. Sometimes if you look at the court system first, there could be, for example, charges of 1,000 dirhams. That is what we would expect is for it to be 1,000 dirhams, which is about $300, but in fact, when we filed a few of these requests online, it ultimately ended up being about a 100-dirham fee, so $20. That is really quite accessible.
Up until this point, remember, really you do not need lawyers involved. That is the point of this particular discussion is that all of this, and this is the reason why we are doing this, as you eloquently said, to put out a roadmap for people to be able to follow without having to come and seek personalized assistance of a lawyer. Once you have your U.A.E. pass, you can set up your court access and then make all the submissions. There are a number of translators around town that can translate your submissions and then submit documents along with a statement online. You can do it all from your phone or from you home, and you do not need to pay very much money. It is about 100 dirhams.
Then the documents you need to submit are birth notification, a copy your passport, the father’s passport, an Emirate’s ID, and then if you have a marriage certificate that you want, for example, validated, and a statement about what it is that you are looking for. That is in terms of the actual submission from A to Z.
Tim Elliot: What happens next?
Ludmila Yamalova: Then you need to identify which court access you need to activate.
Tim Elliot: These are Dubai courts. But there are a number of different courts here in the Emirates.
Ludmila Yamalova: Yes. The U.A.E. has a multi-tiered legal framework, if you will, in terms of courts. Although geographically it is a fairly small country. We do not have one supreme court, for example, to rule us all or to govern us all. There is the federal state security court that obviously is for national security matters, but otherwise for commercial and civil matters we do not have one supreme court, if you will. But depending on the emirate, they are subject to the specific laws that set out their own judicial systems. For example, Dubai has its own judicial system. It has its own courts. It has its own Court of First Instance, Court of Appeals, and Court of Cassation, the Court of Cassation being our highest supreme court, so the decision from this Dubai supreme court or the Dubai Court of Cassation cannot be appealed anywhere else.
Then similarly, when the U.A.E. was formed, Ras Al Khaimah also opted to have its own judicial system, so it also has its own courts in the same way, the Court of Court of First Instance, Court of Appeals, and Court of Cassation. If you are, for example, based in Ras Al Khaimah, then you would be filing at the Ras Al Khaimah court website, so you need to find the Ras Al Khaimah court website. All of the emirates now have embraced the digital world, and all of the court services are available online. Ras Al Khaimah has its own court system. Dubai has its own.
Now, a few years back, Abu Dhabi had also opted to have its own court system, so now if you are a resident of Abu Dhabi, you would also be filing through the Abu Dhabi court system. If you are in the remaining four emirates, Ajman, Sharjah, Umm Al Quwain, and Fujairah, then you would be subject to the federal court, and that federal court actually sits, ultimately the Court of Cassation sits in Abu Dhabi, but the lower courts sit in their respective emirates. That particular court is the Federal Ministry of Justice website. Which court system you have access to does depend on where you are a resident or where you want to file a case. Once again, to recap, Dubai has its own. Ras Al Khaimah (RAK) has its own. Abu Dhabi has its own. Then you have the federal court for all the other emirates. That is where you file your initial case.
Tim Elliot: One tip, Ludmila, and you mentioned this before we started recording, is that when it comes to the birth notification, it cannot be handwritten. It must be typed.
Ludmila Yamalova: Yes. One of the required documents that you need to submit to the court as part of the order on petition request is a birth notification. A birth notification is a document that comes before the birth certificate. It is a document that is issued by the hospital, and ultimately it documents the birth. It documents the date and the time of the birth, who was at the birth, the mother’s name, the father’s name, the doctor’s name, the nurse’s name, and whoever else was assisting. That is what that birth notification is. It is a one-page document. When it is done, because by virtue of what it is doing, it is handwritten, because it is obviously happening on the spot.
In some of our clients’ cases, we have seen all they have is this handwritten birth notification. But the handwritten birth notification is not the official birth notification. In all cases, that handwritten birth notification has to be ultimately converted into a typed one. The typed one, it is not a matter of just typing it out. Ultimately, the birth notification is different from a birth certificate. The birth notification is also to be stamped by the U.A.E. Ministry of Health, the authority that issues birth certificates as well, and to do that, the hospital has to type it out in its system that is linked to the Ministry of Health. When the hospital inputs the information from a handwritten birth notification onto the birth notification system, then is already linked with the Ministry of Health. Whatever date the hospital put in their system gets basically transferred and linked up with the U.A.E. Ministry of Health and then the typed-out birth certificate is ultimately issued. Even though it is administered through the hospital, but it would be issued by the Ministry of Health, and it would have their logos and the stamps of the Ministry of Health as a result.
It may sound a little procedural, but it is actually important to highlight because a lot of the times we have seen people that are being checked out of the hospital with either no birth notification whatsoever or with just a typed out birth notification.
Tim Elliot: I mean, everybody likes bureaucracy to be easy, don’t they?
Ludmila Yamalova: Indeed, or maybe some do it for a reason. Some of the hospitals may not want to type out the actual information into the birth notification because they believe that some data is either missing or wrong. Sometimes we have seen this be the reason. Some hospitals don’t give you the birth notification at all. So on that point, by the way, certain emirates, like Abu Dhabi, for example, and also I think the federal court system, they have specific regulations that clearly and expressly state that it is unlawful to refuse to issue a birth notification. The legal source for that information is there, but it seems that in practice not all hospitals are either aware of it or follow it.
To that end, there is actually another avenue for purpose of at least getting a copy of the birth notification in your hands. It is possible a file a complaint against the hospital through the Ministry of Health. If you go on the U.A.E. Ministry of Health website, there is a service there to file a complaint against the hospital. As part of the complaint, it is possible to file a complaint against the hospital requesting the issuance of the birth notification and also a copy of the birth notification. In your submission, you can rely on the regulation that makes it expressly unlawful for the hospitals to refuse to give it to you.
Tim Elliot: So Ludmila, whether you have your typed notification or not, there are ways of getting the typed notification, of course, we have learned. What happens next?
Ludmila Yamalova: Then once you have a birth notification, or not, as you said, we are still in the process. We filed the order on petition to request, either proving lineage or proving of marriage, or for issuance of the birth certificate. You submit all these documents to the court. For example, if somehow, you still do not have a birth notification, you can also include, as part of your request, on this order on petition for the hospital to issue a birth notification or for the hospital to mend the birth notification. As part of this order on petition, you can also lump in these requests, either an amendment of the birth notification or an actual issuance of the birth notification. Then you submit these documents to the court.
Again, remember it is all online, but it is in Arabic, and you will be able to trace all the progress that is happening in the case because you have your own court access and then by law, once the case is registered, the judge is supposed to respond within a day or two. That is the whole nature and the whole objective of the order on petition. Sometimes it takes a while for the case to be registered. Even though you’ve submitted the documents, you can see online that the case has been submitted, but it hasn’t been so-called registered with the court, so sometimes you need to nudge the court and either resubmit or even request a meeting with the court if the case is not registered.
Once the case is registered, then the judge has to decide it fairly quickly. As part of that, the progress, the natural evolution, once the case gets registered, the judge reviews it and identifies whether there are any additional documents that they may need. In some cases, they may request additional documents or even a meeting with the parties, or they can just issue a decision right away. But one or the other, in our practice and our experience, from the time the case is registered to the time that a decision is issued, we have seen this done within three days.
Once a decision is issued, it is the decision of the court that will hold.
- Ministry of Health, please issue a birth certificate with this information, or
- Hospital, please issue a birth notification, or
- Hospital, please amend the birth notification and give it to the parties, and also Ministry of Health, please issue a birth certificate with this information.
That is what the decision of the court contains. That is what we have seen from our own practical experience.
Then once you have this decision, it is the court’s decision that is issued, then on the back of the decision, again, through the court’s website, you ask the court to issue a letter that is addressed to the Ministry of Health. Because the decision is just a court decision. It is part of the court case. Now on the back of the decision, you request for the court to issue a decision addressed specifically to the Ministry of Health to issue a birth certificate or, for example, a letter to the hospital to issue or amend a birth notification. With that letter, you go to one of the other party or authority.
Then as far as the Ministry of Health is concerned, once you give them this letter, then the committee has to review it and decide. But that seems to be more of a bureaucratic or an administrative step, and not really substantive. All the cases we have seen so far with the court order, the committee just issues a birth certificate. It is just a matter of convening and timing of when they can meet. The committee meets either once a month or twice a month, and so they meet, we have seen, in practical terms, from the time they meet and the time that the birth certificate is issued is a day. Usually it is issued the next day after the meeting.
Now, once you have your birth certificate, voila, then you are ready. You can go to your various respective embassies and consulates and apply for a passport for your baby or for exit documents, because in some cases, some parents, and some mothers in particular, may not want to stay in the country with their baby, so they don’t necessarily want to go through the process of applying for a passport and waiting for a passport from their home country. It is possible and a lot of governments do offer this as an option, instead of actually issuing a passport, they will issue exit documents. But either for the passport or for the exit documents, a birth certificate is required, a birth certificate that is issued here in the U.A.E.
One more thing, the birth certificate will be issued in Arabic, and you do need to have it legally translated, because, let’s face it, not every country can read Arabic. So before you take it even to your own embassy or consulate, you need to have it legally translated and you need to have the document also wherever you travel because it needs to be readable. Then at some point, depending on the country, you can also then convert that certificate or have another certificate issued by your home country. For example, in the U.S., the U.S. government issues a birth certificate that is a confirmation of an American citizen being born abroad. It is the equivalent to a birth certificate. But again, it is based on the U.A.E. birth certificate, which needs to be translated into English. Then you have your birth certificate, and then you have either your exit papers or your passport, and your baby has legal identity. Now you can either stay in the country and sponsor your child or leave and travel.
Tim Elliot: The Arabic birth certificate is a great-looking document as well. That’s another episode of Lawgical, this time, a roadmap where we were trying to break down the steps required to work through the process of receiving a birth certificate for a child born out of wedlock here in the U.A.E. As always, our legal expert here on Lawgical, Ludmila Yamalova. She is the Managing Partner here in Dubai at Yamalova & Plewka. Thanks, Ludmila, as always.
Ludmila Yamalova: Thank you very much. It is always engaging to be chatting with you.
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