Tim Elliot: Welcome to another edition of Lawgical, the U.A.E.’s first legal podcast. Lawgical comes to you from the Dubai-based legal firm, HPL Yamalova & Plewka. My name is Tim Elliot and, as ever, I’m with the Managing Partner, Ludmila Yamalova. Good to see you again.
Ludmila Yamalova: Good to see you too, Tim.
Tim Elliot: In this edition of Lawgical, we’re going to be talking specifically, but briefly, if we can, to try to condense this down about Muslim marriages in the U.A.E. and, more specifically, Muslim expat marriages. Ludmila, let’s start, I guess, with a definition of a Muslim marriage.
Ludmila Yamalova: Indeed. It is an important definition because let’s face it, especially with the U.A.E. being what it is, there are so many mixed couples here. What qualifies as a Muslim marriage and what kind of Muslim marriages actually can be registered in the U.A.E.? To begin with, in order for a Muslim couple to get married in the U.A.E., they have to have residence visas, so at least one of them has to be a U.A.E. resident. It is not that a Muslim couple from a different country can come here and just get married in the U.A.E. There is that requirement of a U.A.E. residency.
Now, how do you show that the couple is Muslim? A marriage is considered a Muslim marriage, and therefore subject to Sharia, if either the groom is Muslim or both the bride and the groom are Muslim. As I say that, it is important to highlight that under Sharia a Muslim woman cannot marry a non Muslim man. In other words, if a non Muslim man wants to marry a Muslim woman, for that marriage to be valid and to be registered in the U.A.E., the man has to convert. This is why we have these two categories, one of which is either the groom is Muslim because that rule does not apply the other way around. In other words, you can have a Muslim man marry a non Muslim woman, but a Muslim woman cannot marry a non Muslim man. Therefore, you have these two categories of Muslim marriages. Either the man is Muslim and the woman is not, or both of them are Muslim, because for the second category in order for it to be legal, the man would have to convert to marry a Muslim woman.
Tim Elliot: Okay. So, Muslim expats can get married in the U.A.E. under those conditions. Depending on which emirate of the U.A.E. the marriage is held in, at least one of the parties has to be a resident and have a valid residence visa. In some emirates, I believe, both the bride and groom have to be residents. In terms of the regulations, the bureaucracy, whatever you want to call it, what has to happen for a marriage to go ahead, for a ceremony to then be held?
Ludmila Yamalova: There are a number of requirements. One is the couple must first undergo what is called a premarital medical screening and obtain a certificate from a qualified healthcare facility to that effect. That is a requirement to get the process rolling. Then, ultimately the marriage has to be registered with the authorities, now the authorities being the court. It’s not that you go to some sort of a state department to register a marriage. It has to before a judge.
For the judge to register a marriage, there is another whole set of requirements, if you will. Some of the other requirements, before we even go to the judge, is that both parties have to be at least 18 years of age. There are a few exceptions for those who are younger, but the law basically sets the marriage age at 18 unless the person has reached puberty before then, and then there is a whole checklist of requirements to prove that before the judge in order to allow for someone below the age of 18 to get married. Otherwise, the default rule is you need to qualify to get married.
In addition to the medical screening certificate, the couple needs to present two male witnesses, and both male witnesses have to be Muslim. Then, more importantly for the bride, the bride has to present her guardian, and her guardian ultimately has to sign off on the marriage to basically approve the marriage. Now, who of is the guardian in the case of the bride? The default guardian is the father. The father has to be present before. Sometimes the father can actually delegate his authority through a power of attorney to somebody else to be there in the court, for example, before the judge to give consent to the marriage. That is the high-level overview of the requirement that comes into play when a Muslim couple wants to get married.
Tim Elliot: I have read in certain cases that approval from the judge might be required for the marriage to take place. Why might that be necessary?
Ludmila Yamalova: That’s a great question, actually a question that comes up all too often, here in particular because once again a lot of the expats here obviously by virtue of being expats, they don’t necessarily have their family close by. Under Sharia, because remember this is a Muslim marriage and the default law that applies to a Muslim marriage is Sharia, and under Sharia, the father that is the default guardian.
Now what do you do when there is no father or when the father does not give his consent? When there is no father, for example, and let’s face it, the father could have passed away, so in that case, the bride would be required to present the death certificate as evidence that the father had passed away and present an alternative guardian. An alternative guardian, again this would be under Sharia, depending on who are the male relatives living at that point in time, it would be, for example, an uncle, grandfather, or even sometimes a brother, but remember it is all predicated on the fact that the father has passed away. In that case, you could present an alternative guardian by way of offering a male relative, but again, it has to be a first-degree male relative.
Now in the event there is no male relative, or if the father is living but is not willing to grant his consent, then there is an option for a bride to request for the judge to act as a guardian instead, so a de facto guardian to approve the marriage. This happens more often than perhaps some may think. The requirement for a judge to act as a guardian, in the beginning to start off with the judge will always try to find out why the father has denied consent, and ultimately the judge can, and in practical terms, does act as an alternative guardian in the event there is no legitimate reason or valid reason for the father to have denied his consent.
With regard to what constitutes valid reasons, they really actually have to be objectively valid, and they have to relate to the health, safety, and wellbeing of the bride. In order words, let’s say a valid reason could be if the groom is a criminal, for example, or if he is mentally unstable, or he has some violent past, or perhaps he is not able to financially support his daughter, but it has to be objective, again. Those are some reasons that would qualify as being valid reasons for the father to deny consent, but they have to be directly addressed towards the wellbeing of the pride. Apart from that, everything else is considered perhaps not valid or not at least objectively valid. For example, if the father denies his consent because he doesn’t like the nationality of the groom or the doesn’t like the family, or he just doesn’t want to, period, and that happens all too often, so in the case the case would not deem those reasons as being legitimate to not allow for the marriage to go through, and in most of those cases, the judge would act as an alternative guardian.
But it is a process. You would need to file the request with the court for marriage, and in the particular case when you don’t have a guardian, you would have to file a special case requesting for the judge to act as an alternative guardian. That is where that determination and, if you will, due diligence will take place in terms of why the father is refusing consent and whether there is or is not a valid reason, and ultimately the judge would act as a guardian and register the marriage.
Yes, that concept does exist and, actually in practical terms, it is applied more often than perhaps some may think because there are a lot of people, Muslim women in particular, who are afraid and perhaps have not gotten married for that very reason because the father has not wanted to grant consent for one reason or another.
Tim Elliot: Once the ceremony is performed, a marriage of Muslim expats in the Emirates, it then becomes an internationally recognized union, and that is under Sharia law. Is that the status?
Ludmila Yamalova: It is a very good question. It is an internationally recognized marriage certificate. You highlighted a very important distinction. Because it is a Muslim marriage, and even though it is subject to principles of Sharia, the marriage certificate is issued by the judicial authorities, i.e., the court. It is not a marriage certificate issued by the mosque, for example. It is a religious marriage in a sense, but it is a religious marriage that has been registered, vetted, issued, and signed off by the traditional authority, so therefore, there is an actual marriage certificate that bears the stamp of the relevant emirate court, and in that vein, it becomes recognizable all over the world. This is unlike, as you rightfully pointed out, for example, a marriage that would have taken place in a place of worship, be it a mosque or temple, or somewhere else, and basically just a religious marriage that is often not recognized in other countries, irrespective of the religion. But this particular kind of marriage is considered as – I shy away from saying a civil marriage – but it is a government approved or a government registered marriage.
One of the other requirements that both parties are supposed to be ready to present to the court potentially as part of the qualification process, and that is in the event let’s say one of them was previously married, so there may also be a requirement of a divorce certificate, or, for example, a death certificate of a previous spouse, and depending on perhaps where they worked, there may also be a requirement for some kind of approval or a no-objection certificate. For example, there are certain people that work in certain sectors, like security type of industries, in particular where it applies to locals or U.A.E. nationals. Sometimes there may be additional requirements, for example, that you need to get an approval from your government agency that they have no objection for you to marry this person perhaps outside of your faith or nationality.
Tim Elliot: That’s another episode of Lawgical, this time Muslim marriages, but specifically for expatriate Muslims here in the United Arab Emirates. Our legal expert here on Lawgical, as ever, Ludmila Yamalova, the Managing Partner here at HPL Yamalova & Plewka. Thank you, Ludmila, for your time and your legal expertise, as always.
Ludmila Yamalova: Always delightful to be chatting with you, Tim. Thank you.
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