Tim Elliot: Welcome to Lawgical, the region’s first and only legal podcast. Lawgical is a regular weekly podcast from the Dubai-based law firm, HPL Yamalova & Plewka. I’m Tim Elliot. I’m here again at the firm’s offices on the 18th floor of Reef Tower in Jumeirah Lakes Towers with the Managing Partner of the firm, Ludmila Yamalova. Good to see you, Ludmila.
Ludmila Yamalova: Good to see you too, Tim, and welcome back to the firm.
Tim Elliot: Good to be here. Now this time and, once again, we’re going to be talking divorce here in the U.A.E. In order to keep this to the point, we’ve discussed non-Muslim couples this week. It’s Muslim couples who decide to go their separate ways whilst being resident in the United Arab Emirates. One of the things that we’re all very aware of in the Emirates is that there are so many different nationalities living together. Many of those people, of course, are Muslim. However, there are aspects of Islam that differ from country to country. They may be cultural aspects of divorce, or attitudes to divorce that are different, or ideals that differ from country to country. What I’m saying is there isn’t a one-size-fits-all approach just because a faith is shared. So, starting at the beginning, a decent place to start, what’s the first thing a Muslim couple who decides to go their separate ways should be thinking about?
Ludmila Yamalova: Well, one important thing to highlight is that for Muslim couples, couples living in the U.A.E. and seeking divorce in the U.A.E., Sharia will apply. There are a number of Muslim couples that might have moved to the U.A.E. from other jurisdictions and perhaps in those other jurisdictions they would have chosen to have different laws apply and then those other jurisdictions’ different laws could apply. But as long as they’re living in the U.A.E. and they’re seeking divorce in the U.A.E., there will always be Sharia that will apply to their divorce. That’s the important framework to keep in mind as they go through the process.
The next one is, as in any divorce, what are the main elements that need to be considered, and those are always (1) children, and then (2) commercial interests, obviously assets. Under Sharia, the general rule as far as children are concerned legal guardianship, which is the ongoing decision making right over the children stays with the father, and then custody, which refers to physical possession, if you will, of children, that stays with the mother depending on the gender of the children and the age of the children. This is the general framework. There isn’t really any way to alter that unless parties agree, but if the divorce does go through the court and strictly Sharia is applied, then basically that’s how that aspect of the divorcing couple will be managed.
Tim Elliot: I think there’s maybe a general view or a feeling when people look at the legal system, with any country but perhaps particularly when it comes to Sharia, that it’s perhaps seen as being less flexible. But if, for example, a couple decides that they together make a decision for the benefit of the children that differs from the way the law would generally be applied and there is agreement between the couple, the court would take that into account.
Ludmila Yamalova: Yes, and that’s a great point to make. As in any dispute, there are two different ways of managing the dispute. One is through the court, and that is through the formal process whereby at the end of the process there is a court order mandating the terms and conditions of that particular conflict, for example. The other one is by agreement, and that is what you are referring to, and in this case that would be a settlement agreement. That is always possible in any divorce, including Muslim divorces, for the couple to sit down and agree on a different framework of their relationship, including children and commercial aspects. But that would be done through a settlement agreement, not through a court order.
Now, the settlement agreement, in order to be able to rely on it in the long run it would be advisable to record it in the court, but it’s not necessary. It’s always possible for couples just to agree on something between themselves and that be their final decision on how they decide to live their lives from there on. But if you have a settlement agreement like that, it’s always better to have it actually recorded with the right courts.
Yes, it’s always possible to vary the application of particular law, and even Sharia, but it’s important to remember that if you want to be able to rely on that agreement you do want to register it with the courts because if it’s ever challenged, and these things happen quite often, you can imagine couples agreeing on a particular way of handling their future regarding children and financial interests at that point in time but as other life events happen and as their circumstances change, couples often change their view about how they want things to continue. We have seen a number of these settlement agreements that as times goes on are challenged. Therefore, if you want to ensure that they stay as is, make sure to register them with the courts early on.
Tim Elliot: Is it possible to challenge a settlement agreement if you’re say a close family member, a father or brother for example?
Ludmila Yamalova: Not really. Not at this point in time. It’s a great question. But it is for the purposes of that particular family, because nothing goes through the court. If it ends up in court, then, yes, they would have a right to register their interests. But if it’s done outside of the court by virtue of an agreement then there isn’t really a way for them to challenge it because the parties agree. That being said, if there is, for example, a legitimate reason for a family member to register their interests, for example, because one of the parents on behalf they have registered an interest, let’s say, is deemed incapable of actually making proper decisions or decisions in the interest of the child, then yes, presumably in theory you could potentially challenge it, but it doesn’t happen very often.
Tim Elliot: Is there any differentiation made as to which party, male or female, applies to a divorce? Is there any difference under Sharia?
Ludmila Yamalova: Yes. It is easier to apply for divorce if you’re a male. There are two ways of applying for divorce or effecting divorce if you will if you’re a male. One, under Sharia, a male can divorce his wife orally and it is just by saying “I divorce you” three times. Then under Sharia that would actually make the divorce effective and official. I will come back to this point. That is one way of doing it.
The other way is that if you apply to the court and in that case as a male applying for divorce in court, there is no requirement to have a judge approve the divorce. Therefore, as a male you can just apply to the court saying, I’m wanting to divorce my wife, and at that point the court will basically just conclude the divorce.
Now, for a female to file a divorce she actually needs approval from the court to be divorced. Now, it’s not to say that the divorce is not approved, but it is just a different process from an administrative standpoint. There are just more things to go through, more steps in the process for a female to apply for a divorce by virtue of having the court ultimately give the woman permission to do so. But it’s not the case, or it doesn’t mean that the court ultimately may not give permission to the woman to divorce. In the majority of the cases there will be a divorce decree, but it’s just a different administrative process for the woman to apply for divorce.
Now, going back to the previous comment about a male effecting a divorce orally by virtue of just saying to his wife three times, the key there and we’ve seen these cases happen quite frequently is the proof because when somebody divorces orally, obviously, you only have that oral representation, so unless there’s a way to prove those statements, there is always a chance to have the divorce challenged, including by the man himself. We have seen these kinds of cases quite frequently when, obviously in the heat of the moment, a man wants to divorce his wife and says so a few times, and in practical terms perhaps they start living separate lives. But fast forward six months or a year from then, maybe he will have changed his mind. If a woman relies on that statement and starts living her life as a single person and perhaps considers even marrying someone else, there is always a risk because the man, her previous husband, may always challenge the divorce and then it will become a matter of proof. How do you prove that those statements were made?
Tim Elliot: What is acceptable proof then in this modern day and age?
Ludmila Yamalova: It would be witnesses. Obviously, witnesses are something else, and you would have to present two male witnesses to prove that those statements were made. Obviously, then that comes down to that particular scenario. If there are none, then how do you prove it? It’s easier for a man to ultimately challenge that, so therefore our advice is always that if you are a woman who is being divorced that way, just make sure to have that documented through the court officially. Don’t rely on just oral representations because it creates more confusion and uncertainty in the future.
Tim Elliot: This is going to sound meticulous, but if I were Muslim and my wife were Muslim and I sent her three WhatsApp’s saying, “I divorce you” in a row, would that be permissible?
Ludmila Yamalova: Honestly, in this day and age, yes, because more and more the court is starting to recognize communications that are done through the digital means as visible proof.
Tim Elliot: Okay.
Ludmila Yamalova: It wasn’t, and even in the U.A.E. in particular, recently there have been new civil procedure laws introduced where that particular form of admissible evidence is now clearly expressed, so presumably. We haven’t seen those kinds of arguments in our practice just yet in that context, but we certainly have seen a lot more courts accepting WhatsApp communications, email communications, any other digital ways of communicating as admissible evidence. So presumably yes, you could even use that as proof of an effective or formal divorce.
Tim Elliot: Let’s hope we don’t see Instagram posts causing divorces, although that may have already happened. Let’s come back to the idea of a divorce that is in court. Just recap very quickly, if you would, how children are affected, but also look at what happens with joint property, be that a home, a car, a boat, whatever it might be, but also the question of debt, how a Sharia court handles debt, on either side, either party.
Ludmila Yamalova: Let’s start with the commercial side of a divorce. As a general rule, when there is a divorce between Muslims, all of their separate interests go their separate ways, so to speak. In other words, if there is a property that’s in the name of the wife, that property follows the wife or the woman. If there is a bank account that’s in the name of the man, then it follows the man. In other words, what’s yours is yours, and what’s mine is mine. There’s no communal property, and there’s no other division of commercial interests only on the basis of being husband and wife. There is a form of alimony that a woman can apply for, but that’s really only limited to about three months and it is for the period of transition after the divorce. That’s really the maximum extent of commercial support that a woman can legally ask her ex-husband for under Sharia. Therefore, in a way it’s much simpler to administer commercial interests or financial interests between divorcing parties under Islam than in other jurisdictions.
This also applies to any kind of form of debt. If, for example, the house that is registered to the woman is mortgage, obviously a mortgage is a form of debt, then it’s only her that remains to be liable for that debt, and not her husband just by virtue of being her husband.
Now, let’s make it a little more complicated. Let’s say there is a family property that’s in the name of both wife and husband and there is a mortgage. As long as they jointly own the property, then the mortgage and the liabilities also are jointly shared. So, in that particular case, now you have this asset which is jointly owned, so therefore, 50% goes to the wife and 50% goes to the husband, and the liability or the mortgage obviously is half and half the responsibility. In most cases it’s called a joint and several liability. In other words, if the husband stops paying the money for the mortgage, then the wife is responsible for the entire mortgage, and vice versa. In that particular case, if there’s a divorce it’s quite complicated because how does the court order for the parties to divide up the particular asset. It really comes down to either agreement between the parties for one of the other to sell the share of the house to one of the other one of them, or to sell the house altogether and divide up the proceeds, or for the court, if the parties cannot agree, for the court to order the sale of that property or the auctioning off of the property so that they can have actually just proceeds that are easy obviously to divide than immovable property. That’s generally speaking how financial interests are handled in divorce under Sharia.
With regards to children, there are two concepts under Islam which do not quite exist in the same way in other religions, and that is guardianship and custody. In most other countries they’re really one and the same. In Islam, the guardianship, which is the ongoing legal right that usually means decision making on behalf of the children, remains with the father, and custody, which refers to physical possession or the physical relationship with the kids, usually stays with the mother. Legal guardianship doesn’t really change. It doesn’t change even based on the age or gender, but custody does.
First of all, custody depends on whether the children are female or male, how many children you have, and what ages. Generally speaking, for the girls, mother have custody until the age of 13 and then for boys until the age of 11. In the U.A.E., and you referred earlier to the point of even Sharia is applied somewhat differently depending on the country, in this country, in the U.A.E., the courts tend not to separate children with regards to custody. In other words, if you have, let’s say a boy who is 11 and a girl who is 7, chances are that the court will give custody for both children to the mother to because, let’s face it, the children are still minors and the courts here don’t really like to separate children that are minors. Even though under strict interpretation of Sharia perhaps that boy could now be living with his father and his father’s family, in the U.A.E. the courts tend to keep children together.
Tim Elliot: Ludmila Yamalova is the Managing Partner of the Dubai-based law firm, Yamalova and Plewka. As ever, Ludmila, thank you.
Ludmila Yamalova: Thank you very much Tim.
Tim Elliot: That’s it for another edition of the Lawgical podcast. As always, it’s practically impossible to answer every legal question on any given topic that you might have in a single podcast. However, if there is a specific question that you need an answer to, get in touch via Lylawyers.com and we’ll try to answer it in a future edition of Lawgical. Next time on the Lawgical podcast, we’ll be discussing real estate here in the United Arab Emirates, specifically the residential rentals market, things to think about and the state of the market right now, just over halfway through 2019.
