Tim Elliot: Welcome to Lawgical, the U.A.E.’s first and really the only regular legal podcast. My name’s Tim Elliot. Lawgical comes to you from the Dubai-based legal firm, HPL Yamalova & Plewka. We’re in JLT, Jumeirah Lakes Towers, and as always, I’m with the Managing Partner, Ludmila Yamalova. It’s good to see you again.
Ludmila Yamalova: Good to be back with you here, Tim.
Tim Elliot: This time, it’s the new family law for non Muslims in the U.A.E. Now, this is a couple weeks since coming into effect. I know we’ve got executive regulations to follow, and we will come to that in this, Ludmila, but it’s in line with Federal Degree 41 of 2022 in regard to civil personal status. On February 1, 2023, this actually came into effect. Essentially, it’s a new civil personal status matters law. I want to start there. How is that different, Ludmila, from the U.A.E. personal status law as it has stood?
Ludmila Yamalova: A great startup question. The U.A.E. personal status law, while it is ultimately a codified law, it is based on principles of Sharia. It’s not the fact that the U.A.E. is governed by Sharia law, which is often referred or discussed. We have a civil law system in the U.A.E. in terms of the legal jurisprudence, but the specific laws, particularly the personal status law, are based on the principles derived from Sharia, which ultimately means that in terms of personal status matters such as marriages, divorces, custody, inheritance, it is the principles of Sharia that apply to all of those aspects of personal life.
For example, in the case of divorce, there is a no-fault divorce and there is a fault divorce. In the case of custody, the default is that this concept of guardianship and custody are two separate concepts which do not exist in other, perhaps non-Sharia, legal frameworks. For example, in the West, there is only custody or only guardianship, and these two separate concepts do not exist.
Under the U.A.E. personal status law, they exist as two separate concepts. The guardianship stays with the father, and the custody, physical possession of the child, goes with the mother. Similar with inheritance, anything related to inheritance, whether the deceased or testator is Muslim or non Muslim, it does not matter in the eyes of the court.
The probate or inheritance proceedings govern under the same principles of the U.A.E. personal status law which are governed by Sharia, which basically, among other things – and these are specific high-level examples- focus on the children versus the spouse. Let’s say it is the husband that passes away. The spouse gets to inherit the very small fraction of the estate versus what she would have inherited in other jurisdictions from her husband. That is another example.
Just to clarify, the current U.A.E. personal status law is not Sharia law, but it is based on principles of Sharia and therefore in its application by the courts, it is predominantly governed by Sharia principles which ultimately mean religious principles. That is why in many cases for non Muslims it has been a bit of a challenge, at least a philosophical or psychological challenge when you are not Muslim to deal with, for example, questions of custody or divorce or inheritance, principles that are, to non Muslims, fairly alien because they are so deeply rooted in religious principles and application. Perhaps at a high level, that is you would summarize the U.A.E. personal status law.
Tim Elliot: So essentially, this new law will regulate marriages, divorces, custody, we believe possibly the fostering and adoption of children, inheritance for non Muslims, and now that means non Muslim couples can get married through the local courts. They can arrange a prenuptial agreement. They can set marriage, divorce, or custody setups as well. This is all encompassing for non Muslims.
Ludmila Yamalova: Yes. Perhaps the biggest introduction or overarching objective of this new law is that now non Muslims will be governed by a different law. If you take a step back, from now on, from the time that this law comes into effect, we will have two different types of personal status law.
One is the U.A.E. personal status law that applies to all Muslims, and the other one is, again, the U.A.E. personal status law that applies for non Muslims. In fact, it is even called that, the personal status law for non Muslims.
With regard to Muslims, and this is important to highlight, the current U.A.E. personal status law applies to all Muslims, irrespective of their nationality and citizenship. For example, if you have couple from Australia that are Muslim, who might have gotten married in the court, but for the purposes of the U.A.E., they are treated as Muslims. It is not based nationality or citizenship, but rather on your religious background.
With regard to non Muslims, until recently, we would have just said, it is for expats or for all foreigners, but in the last several years, we have covered on this podcast quite extensively the U.A.E. immigration laws and citizenship laws have changed dramatically, and among other things, there have been a number of non Muslim Emiratis, for example, Chinese, Indian, Russian, and so on and so forth. Now, we no longer can say that this non Muslim personal status law will apply to foreigners only. No, in fact, it clearly states that it applies to even citizens who are non Muslim, and now that percentage is growing.
At a high level, from now on, anything to do with family or personal status will be segregated into a law that applies to Muslims and a law that applies to non Muslims. As I was saying this, I was going to say it is the firs of its kind, but it actually isn’t. What’s important to highlight is this particular law is the federal law, and the federal law was published in the official Gazette in November of 2022, so just a few months ago. However, as per that publication, the law comes into effect on February 1, 2023, which as you rightfully said, was a few weeks ago. What we are talking about is a federal law. However, a federal law meaning that it applies to all emirates equally, and for most of our listeners, but perhaps for those who are not familiar, there are seven emirates. This federal law applies to all seven emirates.
That being said, there is currently, and it has been on the books another law, from a specific emirate, Abu Dhabi. Abu Dhabi has had on its books a personal status law for non Muslims. We covered that particular law on this podcast along with its different variations and amendments, all of which happened very quickly, but ultimately I would say in this particular case, Abu Dhabi had led the way in terms of a personal status law for non Muslims. While I talk about this as an unprecedented federal law, that is not exactly accurate because there is this Abu Dhabi law that, if my memory serves me right, was introduced at the end of 2021, and we covered it in the beginning of 2022. The very purpose of that law first started out for non Muslim residents or only for visitors or expats, then it very quickly evolved into being a lot more encompassing, to the point of it even welcome marriages of nonresidents. That being said, this is the first time we are seeing a personal status law for non Muslims at the federal level.
Taking perhaps a step back and looking at an even higher level, why is the personal status law important? That is because in most cases, the personal status law governs anything to do with personal matters, and that is starting from marriages, divorce, custody, and inheritance. Therefore, anything related to any one of those aspects of our lives will now be governed for non Muslims by this personal status law which just came into effect in February 2023.
Interestingly enough, from what we can tell, it is still very new, and as you rightfully said, Tim, this law is a substantive law and many aspects of this law also refer to executive regulations that will further clarify various aspects of the law. These executive regulations have not been issued yet, so I am certain, as it has become customary by now, we will do a followup podcast once the regulations are issued. But this is very typical of the development and evolution of the U.A.E. jurisprudence where there is the substantive law that sets out the main framework in a particular area or legal issue, and then it clarifies, qualifies, and provides further details on the very specific aspects of the substantive main law.
As we go through the discussion of this current law, it’s important to keep in mind that some of the specific points that we mention will be further detailed in future regulations and therefore there is not much more detail that we can share in today’s podcast.
But at a high level, what’s interesting about this law is it clearly gives a preamble to this law that says first of all, it will apply by default to all non Muslims. Therefore, now when, let’s say a non Muslim couple wants to apply for a divorce, the default will not be the U.A.E. personal status law, as was the case before, but rather it will be this personal status law for non Muslims that will apply by default. We will not have to argue that the personal status law does not apply because of being non Muslim, nor can you really perhaps abuse the system by trying to avail yourself of the U.A.E. personal status law or Sharia law because you think it benefits you in terms of divorce, which by the way is a strategic advantage that has been used a lot, in particular, by husbands because under the Sharia principles, a husband’s obligation to pay for financial support is a lot more limited than it would be under the non Muslim or non Sharia principles. Similarly with custody and guardianship, the father gets more rights over the children than the mother, for example.
We have seen in our practice this particular law being used to the advantage of non Muslims. It is one thing for Muslims to have these principles applied because that is their faith and this is rooted in their religion. But for non Muslims, it is rather alien, and yet, we have seen a lot of non Muslims wanting to benefit, so to speak, from the application of this law by point of negotiation really. It is almost to apply leverage or a strong-arm tactic against, in most cases, wives to give up certain claims.
Now, from what it appears, this particular law will be applied to all non Muslims by default, and if non Muslims want a different law applied, then they have to establish the reason or the application of a different law. In most cases, if I were to guess, you have a non Muslim couple that are now being divorced under this law, and the husband asks for the application of the U.A.E. personal status law, then in relevant terms, he would have to prove to the court that that law should apply to him because he is, for example, Muslim. But if he is not Muslim, then he cannot really make a colorable argument to the court. That would be my prediction, that basically that potential abuse of process will no longer be available in these kinds of cases.
Tim Elliot: So under the new law, it is specifically claimed that men and women are equal in all rights and obligations. That is set out very specifically in the law, and it covers testimony, inheritance, a right to request divorce, and also custody. What I find interesting, although the new law sets out equal right for women and men, only women are entitled to spousal support as well.
Ludmila Yamalova: Yes. This is perhaps still subject to the executive regulations, and that I am sure we will tackle in the future, but for the time being, as you rightfully said, perhaps one of the most important and overarching preambles of this new law is that the principle of equality between men and women. The new law clearly and expressly states that men and women are equal in all rights and obligations and specifically this covers testimony, inheritance, the right to request a divorce, and custody.
Just to juxtapose the importance of this for non Muslims, for example, there is equality in testimony because under the U.A.E. personal status law and under Sharia law, for example, in terms of testimony, the man’s testimony counts perhaps double the value of a woman’s testimony, so you need to have two women testify to be equal to one man’s testimony. For example, and again this is rooted in religious principles, but it has been applied historically to everyone, all residents in the U.A.E., and you can see it makes sense from a religious standpoint for those who are of that faith, but for those who are not, it is a very alien concept. What this law now, in addition to everything else, in addition to marriage, divorce, custody, and inheritance, it also mentions, for example, equality in terms of testimony and also in terms of the right to divorce, which is important, and we can go through it category by category in terms of the various aspects of life in terms of how this law applies. But as you rightfully said, perhaps the most important aspect of this law is the express statement in the preamble, and therefore, a filter for the rest of the law in terms of equality between men and women in all types.
At a high level, and we can go through this a little further and in more detail, at a high level this means with regard to divorce, both men and women can ask for their equal right to divorce. It is not the case that it is easier for a man to divorce than it is for a woman, as is the case under the U.A.E. personal status law, for example, or in custody, for example, that the men get stronger rights over the children than women. The law is very specific that in custody both parents have equal rights to their children in all aspects. Similarly, with regard to inheritance, let’s say under Sharia law when a testator passes, if he or she has daughters and sons, the sons would get two-thirds of what the daughters would get, again, at a very high level. Here, for the purposes of inheritance, under this law, as long as you are non Muslim, all the shares of the estate will be distributed equally amongst all heirs, irrespective of the gender.
That is the most important aspect of this particular law, which I think is going to be not perhaps surprising to a lot of the residents because there have already have been other laws in the U.A.E. that have at least allowed non Muslim parties to argue the application of a different law. It was just that it was more difficult, in practical terms, to argue and education a local judge about a non U.A.E. law. How do you education a local judge about a French law or an Austrian law or an Australian law? It is a lot more difficult. It is not surprising, and perhaps this was a long time coming. It is definitely an extremely welcome changed and development for all of those residents and citizens of the U.A.E. who are non Muslim.
Now, with regard to the different aspects of the personal status law and the most important elements of this new law, we can start with marriage. Before I dive into it, we are recording this podcast in February 14, 2023 on Happy Valentine’s Day, so Happy Valentine’s, the law has now only been in effect for 14 days. There is already one case we have been able to find in Dubai Courts that has been registered under the new personal status law for non Muslims.
One side note I also want to make here is that, and we talked about it in several of our podcasts, but there is a dedicated podcast on this as well in terms of the U.A.E. judicial system and how it works. This is important in the context of this because we mention Abu Dhabi law and Abu Dhabi courts and then we talk about Dubai courts. While we have this federal system and federal laws, certain emirates, in terms of their court systems, have opted out of the federal court system, and they have their own court systems. For example, Dubai has its own court system, Abu Dhabi has its own court system, and Ras Al Khaimah has its own court system. Then you have the federal court system, which is for the remaining four emirates, which is Ajman, Sharjah, Umm Al Quwain, and Fujairah.
With regard to Abu Dhabi, in the Abu Dhabi courts we have already seen it because they have actually had a specific law for non Muslims for personal status matters since 2021, so this particular service for non Muslims already exists and has been in existence for quite some time.
We have also checked the Dubai court system, and there is an option there for non Muslim personal status services, so therefore as a non Muslim, the Dubai portal has already been adjusted and it allows you, as a non Muslim, to file a specific service as a non Muslim.
Similarly, Ras Al Khaimah has already updated its court system and has introduced certain aspects of the new law, in particular, civil marriages.
With regard to the other emirates, which sit under the federal system, and therefore are governed, from the court’s perspective, by the Ministry of Justice, they have not yet updated their online system. For example, when you listen to this podcast, if you coming from Fujairah or Ajmam or Sharjah, don’t be surprised if this particular service is not available to you yet, and that is because the law is still very new, and it’s being implemented. You have four emirates there versus one emirate and the same court system, and it may take a little bit longer for the Ministry of Justice to upload and update the new service, but as far as Dubai, Abu Dhabi, and Ras Al Khaimah, these services for non Muslims are already in place and, therefore, you can start availing yourself now.
Now, let’s go to the different aspects. We will start with, what does it mean, the personal status law, in practical terms? Let’s talk in practical terms about marriage. It is interesting because there are some – and this remains to be seen, and perhaps there will be a little bit of correction, if I dare to say – because one of the provisions in this personal status law states that marriage is a marriage of equals and for the civil marriage to be legally conducted in the U.A.E. the man and woman must be at least 21 years of age. That particular aspect of the law seems a little contradictory to the rest of the law.
Tim Elliot: It does. I was under the impression it was 18.
Ludmila Yamalova: Exactly. Under other U.A.E. personal status law and other laws, the legal age for marriage is 18. Here it says 21. It’s interesting to see and maybe it will be adjusted and maybe it was done intentionally and non Muslims have to wait until they turn the age of 21 in order to legally get married. That is at least how the law is stated today.
Then the marriage has to be consensual. It can be registered before the notary judge and accompanied by a single declaration or affidavit from the couple. Now, that may seem like no big deal, very easy, simple, and self-explanatory, and that may be so, except that it was not like that before.
Just to give some context, prior to this law coming into effect – we are talking about marriage right now – for non Muslims to get married in the U.A.E., there were limited options. For certain nationalities, their own governments, their own embassies or consulates, could married them in the U.A.E., but not all countries allow for it. But otherwise, at a high level, as non Muslims you could not get married before local courts and it had to be done either through your government and their consulate or embassy or through some kind of religious institution, be it a church or a temple, for example, or synagogue, and you could not just get married before the courts as you would as a Muslim. Therefore, for a lot of people, there was a problem because not all governments would offer the service of marrying their nationals outside of their country. For example, for Americans, the U.S. government does not offer that service and many other European countries do not offer this service. Romania, for example, does. That was one option, and the other option is doing it through a church or a synagogue, and even with that there was a process for them ultimately to have to attest that marriage, and at its roots it would have to be a religious marriage. Obviously getting married in a synagogue, church, or Indian temples, that marriage at its core and its root is religious. To have a civil marriage, you basically had to fly outside the U.A.E. and get married there because you could not get marriage before a judge in the courts here.
Now as per this new law, this option is now expressly available for non Muslims. There will be a judge, and it is called a notary judge or an attestation judge before the parties can appear and get married. Furthermore, in the past, you basically needed witnesses to get married. Again, this applies mainly to Muslims, but there was no other way to get married in a civil marriage. Now, as per this law, if it is a non Muslim couple, they just go appear before a judge with a single declaration, and the judge has the authority to marry them. There is no need, for example, for a guardian or for any kind of witnesses to be present. I think that is quite an important step forward for all of the non Muslims living here.
In terms of the procedure as far as the law is concerned, the practice will have to follow and we will update in a subsequent podcast, but for the time being the filing is done through a notary judge, as per the regulations themselves, based on submitting a form to get married. By the way, in Abu Dhabi there are specific forms, and these specific forms have existed for quite some time. For example, there is a specific for a civil marriage application and a specific form for a divorce application, and I would expect Abu Dhabi has these specific forms because they have had this service for much longer, as I mentioned earlier, and it is probably just a matter of time before Dubai and Ras Al Khaimah, for example, and other emirates will also adopt similar forms and there will be a specific form for marriage, but for the time being, you can just basically request it through the court and just indicate the service that you are looking to avail yourself.
Interestingly enough, the law also provides that when you file your request for marriage before the local courts, for non Muslims, the spouse must submit a will form, outlining the distribution of the estate in the case one of them dies. How this is going to be implemented remains to be seen, but ultimately what this appears to mean is that whenever you get married, at around the same time, since you are going to be before a judge, you right away submit a form that is ultimately your will in the event one of them dies and showing how the estate will be distributed. We will see how it is ultimately put into place in practice, but for the time being that is basically what the law states, and it will be interesting to see how this works in practice in the future.
Tim Elliot: It would lead you to believe, wouldn’t it, that at some point in the not so distant future, wills for non Muslim couples will be recognized as a matter of course?
Ludmila Yamalova: Absolutely. For sure. I think it is already, in many ways, the case, especially as far as Abu Dhabi is concerned. Abu Dhabi has not only introduced this law, but over the last year and a half it has expanded the scope of the law, basically inviting and opening up its borders, not just to Abu Dhabi residents but particularly for marriages, for example. I think as time goes on and as this new federal law is implemented and integrated further that it will be just a matter of course that it will be easy to get married, perhaps very similar to how it is in other countries, and equally so with regard to wills. To register a will is going to be similar to how it would be in other countries.
Tim Elliot: I’m reading, Ludmila, in the absence of a will – I guess at the moment this could slip through the net, as it were – the law provides for an equal distribution of the estate and that is regardless of gender.
Ludmila Yamalova: Exactly. Yes. It’s interesting because ultimately if want to talk about this in sequence or chronology, you want to talk first about marriage, then you want to talk about potentially divorce and/or custody, and then last you want to talk about inheritance or probate, as you just mentioned, Tim, and that is how I wanted to discuss this. But as you rightfully said, the way the law is drafted is that as part of your marriage you are basically encouraged to be thinking about what will happen and how you want your estate to be distributed when you die, so you are starting out with the last stage, or at least to start thinking about what that means. It’s interesting. But I’ll tell you another thing along the same lines, what this civil marriage and the marriage process allows you to do is to register, among other things, a prenuptial agreement, and that is important. A prenuptial agreement is a clean page, and you can indicate whatever terms and conditions you want to indicate at this point in time, and that could include inheritance and it could also include custody of the children, guardianship, and any kind of financial distribution, and perhaps segregation of certain financial assets from the spouse’s wealth or estate at that time. This is important. As part of your civil marriage, as per this new U.A.E. personal status law for non Muslims, you can right away register your prenuptial agreement. There is no indication – and I don’t think this is even possible – that there will be some kind of a template for a prenuptial agreement, but maybe with time there will be some kind of bullet point form that at least helps parties think through some of the aspects of what they may want to include in a prenuptial agreement. Based on how the law is drafted right now, I would say it is a clean slate and you can basically write up whatever you want, and you can register that prenuptial agreement right away when you get married. To be honest with you, I think it’s actually a really interesting and a very helpful provision because – maybe I am exaggerating to an extent – but to an extent it is true that the U.A.E. and the residents that live here are a very interesting kind, and so many residents who live here might already have had previous families, or families from before. They have children. They might have inherited money. They have investments all over the world. They might have had previous spouses and parents. They have moved to Dubai as part of an investment or retirement, looking for a new life, or starting a new chapter, and therefore, in terms of having the option of this prenuptial agreement early on, if they meet a new partner and want to start a new chapter, you can see this is highly valuable. We have seen a lot of clients ourselves that have had exactly these very questions. I found a new love I want to marry, but I have children from a previous spouse, and I want to make sure that the estate is clearly segregated for these children. We have had a lot of very contentious cases that are a result of these complex family circumstances.
Now, as far as this law is concerned, it seems that it provides some kind of a formula that can create certainty and a sense of confidence for those are marrying here that they can legally marry here and at the same time legally segregate certain aspects of their previous life to keep it separate from the new spouse.
That was marriage. For the time being it seems that any U.A.E. resident can opt for this civil marriage before the courts. If you recall, Tim, as far as Abu Dhabi is concerned, the expansion of their original law was that they opened up the ability to get married even for nonresidents. I don’t necessarily see that language in this federal personal status law for non Muslims, but that is something that perhaps the executive regulations will shed some more light on, but in the meantime as far as Abu Dhabi is concerned, even nonresidents can get married. As far as the federal law is concerned, let’s say in Dubai or Ras Al Khaimah, it seems to be more limited for the residents, at least for the time being.
Tim Elliot: That would be a really interesting development, wouldn’t it, when you consider Dubai’s position as a destination. It’s an attractive destination. It is picturesque. It would surely be attractive to people all over the world to come and get married on the beach in Jumeirah in Dubai, or whatever. It’s a natural, perhaps, next step.
Ludmila Yamalova: Absolutely, just like Seychelles has become and Sri Lanka, these are the kinds of things that we have grown accustomed to seeing. For a lot of residents in Dubai that wanted to get married, because we didn’t have a civil marriage option here before, they would just get on a plane and have an exotic wedding in Sri Lanka or Seychelles, and these are examples of countries that did not require the parties to be residents of the country for the marriage to take place.
Tim Elliot: Imagine your wedding photos under the Burj Khalifa.
Ludmila Yamalova: That brings up a very interesting question. That would be incredibly romantic and picturesque to have your wedding pictures in front of Burj Khalifa, but perhaps that is a topic for another podcast whether that kind of display of celebration of some of these kinds of sights would actually be allowed by law. I could see how the law could accept this as a next development, and we might see more wedding dresses in different picturesque locations around Dubai and in the U.A.E. in general, at Burj Khalifa, Burj Al Arab, the Museum of the Future, and so on and so forth. it is certainly a space to watch and a podcast to be on the lookout for.
Tim Elliot: You’re always thinking about content.
Ludmila Yamalova: Always. There is so much of it. It is hard not to.
Tim Elliot: There really is. The thing is, this new law, is a huge deal. It really is. I think, without wanting to use that word again, it really is a groundbreaking development, and we see so many of those. Let’s go from marriages, very quickly, to look at divorce under this new regulation.
Ludmila Yamalova: The most important aspect of divorce is that it is a unilateral divorce. There is a provision for unilateral divorce which basically means that any party can request a divorce without having to proving any fault of the other party or to blame the other party. A unilateral divorce can be filed based on the form created for that specific purpose, a unilateral divorce or an amicable divorce. In fact, in Abu Dhabi there is already a form that clearly states – and this is not just a service – this is a form template which is called a no-fault divorce application form. We have talked about it a previous podcast, but it is pretty groundbreaking because for a lot of couples and families here who are non Muslim, how many times in my own practice here I have to try to talk people off of the edge because they were so gung ho to go in with guns blazing, trying to find blame or fault against one’s spouse, and it was all with this idea to qualify to get divorced, I need to show fault or I need to show blame. Well, that is not so under this law. You don’t need to show any blame or fault, and both parties have an equal right for a divorce. It doesn’t matter who files because the distribution of financial assets and custody and guardianship will be all dealt with in the same way irrespective of the form or who files. There is only form of divorce. Well, there could be two because there is a contentious divorce and there could be an amicable divorce, but ultimately it does not matter the gender of the party that is initiating the divorce because the distribution will be the same.
Now, as you rightfully said when you mentioned this earlier, it is interesting because with regard to all
Although the law prefaces the rest of the framework, men and women are equal in all rights and obligations with regard to this law, but in terms of alimony during the divorce it seems that the current language of the law states that a divorced woman after the divorce judgment is issued can apply to the court and request alimony from her ex-husband. The emphasis here is on the woman. At least as far as the text of the law is concerned, it seems to only allow for the possibility for the woman to claim alimony. This is alimony, not a distribution of assets. It is alimony, which is the future and ongoing financial support and payment from the ex-spouse. Here there seems to be more of a suggestion that only the woman can apply for alimony and not the other way around. For example, we have represented clients in our practice where the man was a stay-at-home dad and the woman was working. In other jurisdictions, that man would have the same right to claim alimony and support from his ex-wife as if things were reversed and it was the wife that was not working. But in the U.A.E., particularly for cultural or perhaps historical reasons, that kind of request for alimony was not really considered in the same way. It seems that perhaps that cultural or historical principle has permeated into this new law as well, but we have seen this before. This is the substantive law, and it will be further clarified in future regulations, and we have seen the main laws being amended and clarified further shortly after they are issued over and over again, as is the case with the Abu Dhabi personal status for non Muslims law, which we have talked about so many times, the same thing. It may change, and we will absolutely, as you said, we will follow up on that. But for the time being, although the law provides for full equality, it seems that expressly only the woman can ask for alimony, not the man.
In terms of the calculation of alimony, the alimony is calculated based on a number of factors. Again, this is as per the law. These include, but are not limited to, the years of marriage, the wife’s age, financial position of the spouse, contribution of the spouse to the cost of divorce, the father’s payment of children’s custody, wife’s care towards the children or lack thereof, and in all cases the wife is no longer entitled to alimony if she gets remarried. This is quite interesting as well and seems to be a little bit of a spillover from the U.A.E. personal status law and particularly Sharia, and that is where the marriage stops alimony payments from the ex-husband. Remember, the alimony refers to a payment to the wife and not support for the children. In a way, logically perhaps it is justified to many because if the wife gets remarried now she has a new husband that can potentially support her, although I think some might disagree with that because there are a lot of stories where wives had given up their profession or given up their career to support the husband, the husband does very well financially with a lot of income, but the wife has given up her career with the expectation of the lifestyle that would be funded by the husband. Then when they divorce, that whole world falls apart. Maybe in those cases this would be unfair, or the right to remarry curbing the future entitlement to alimony may seem to be unfair, but that is where the law is right now.
For the time being we have seen, as I mentioned earlier, we have seen one divorce being filed with he Dubai courts under the non Muslim personal status law, and in this particular divorce, the parties have specifically requested the application of this law. The hearing was scheduled for March 8, 2023, so we will monitor that case. Certainly, as this case develops and other cases develop, we will do followups to explain exactly in practical terms how the courts are applying this law, because remember what we are talking about today’s podcast is truly just based upon the text of the law, not its practical applications, but just the text.
Tim Elliot: Let’s move on to the next piece of text of that law and quickly run through – well, as quickly as we can – run through joint custody, which is quite detailed.
Ludmila Yamalova: This, perhaps for a lot of parents, particularly mothers, it would be a huge relief because the default here, this is where the principles of equality of men and women, for the purposes of this law for non Muslims, is highlighted the most. That is that the parents have an equal right to their children, and that is by default. The default is that the parents have a default equal and joint right to custody and this right is also granted to children so they are not deprived of a parent to care for them. Basically, the children can expect the same equality from their parents. To be honest with you, to me this is huge, just because having witnessed and managed and assisted so many couples and families through their divorces in my practice, it is always the children that perhaps is the most painful subject and the most challenging issue to work out between the spouses because they often use children as a weapon and a tool against each other as leverage. In many cases, they have been able to do so more effectively because they played this, I am a father and I have more important rights to the children than you as a mother, or I am a mother and I can have physical possession while they are young. There is a lot of play there that is often perhaps abused, and the children’s interests get lost in the process. I really enjoy seeing this now in print, which is that both parents off the bat have this default equal right and there isn’t any fighting.
However, there is a provision that if parties want to vary the default right, the equal right, to the custody of the children, they need to do so by a specific application to deprive the other parent of the custody or if a party wants to waive their right to joint custody. This is very important as well, I have to tell you, because there are so many couples and families that live here and not to prejudice anybody or profile, but I’ll just give a few examples. For example, if the father leaves the country and leaves the mother here with the children and the father is just not available anymore and is not supporting the children, or even if he lives here but is not supporting the children at all, there is a way for the mother in this example to file to vary the joint custody and present to the court that the father should not have custody because the father has not paid for the children, has not visited the children, and so on and so forth. Now there is a legal tool for the parents to apply to request a waiver and equally so, there is a way for parties to voluntarily waive this right as well, which is also very important because some parties don’t want to be involved. They might have moved on to another family, or they just realized they are just not meant to be a parent, or they were an accidental parent. There are loads of reasons. Why this is also important is because in a lot of countries, and also the U.A.E. for a while had this practice, for example, where for a single mother to travel with her children, they always had to show a NOC from the father. With something like this, if you can have a legal document from the U.A.E. that shows the father waived his custody or the mother through the court varied the equal custody, there is now a legal document that the parents can have to rely on for the future in terms of making it easier for them to live and travel. This, by the way, applies to both. The case could be reversed. It could be the father that could be more supportive and more involved in the children’s lives, and the mother is more distant. It can vary both ways. It is not like you can only vary custody in favor of the mother and not the father. It is an equal right.
Also, the law provides in the case of the father and mother disagreeing on any custody matters, either one of them have the right to apply to the court to resolve their dispute. Again, the court seems to be not just available, but also has specific legal tools for parties to rely on to help them with their disagreement that would stem from their perhaps failing marriage.
Tim Elliot: There is one more thing that I really would like to get to, and that is lineage. This is very specifically accounted for in the law, as is a clause for fostering and adoption as well, which I think I am right, is a new inclusion.
Ludmila Yamalova: Yes. Anything to do on lineage, and that is a separate section, and it talks about the proving of the lineage, the DNA test, which is specifically provided for in the law which is very helpful, although in practical terms perhaps less important now since the amendments to the criminal law and to the U.A.E. federal law on the issuance of birth certificates where in the past the proving of lineage was essential in order to, let’s say apply for and receive a birth certificate for a baby without a known father. This proving of lineage was a big deal, and it was complex and lengthy, so some of these provisions relate to that. But the application would be less relevant now because now the law specifically provides and a lot of the courts already, Abu Dhabi in particular, have specific forms already that provide for single family and the right for single parents to apply for a birth certificate without having to prove the lineage, purely on the basis of a confirmation declaration that the father is unknown. That being said, it is now specifically stated in this law and makes it easier, because what you can have is a dispute on parentage. You could have a mother claims that a certain person is the father of the child, and there could be a dispute about that. Now the law specifically provides that the court can request a DNA test in case someone is claiming a child only after confirming that the child is of unknown lineage or the child’s age could make them a child of that person. You can see how in the past these questions would not have arisen here because of the previously criminal implications or liabilities that would have resulted. Now it is specifically stated for in the law.
As you said, a really important addition of language in this version of the law, though must still remains to be seen in terms of how it is implemented, is the specific language that the cabinet will release a decision regulating the procedures for adopting children and fostering them. Fostering in the U.A.E. is a lot more common and a lot more talked about. It is perhaps even more certain how fostering happens because fostering happens quite often even among Muslims. But the process of legal adoption is forbidden under Islam and Sharia. We have covered this in an earlier podcast. Adoption is still not allowed. The only way for non Muslims to have adopted in the past, they would have had to go to a different country to legally adopt children there and only then bring them here. Now at least the particular law provides that the cabinet issue a resolution and guidelines as to how non Muslims can legally adopt. I think that is Instrumental and fundamental, if not revolutionary, but I cannot say much more because all the law mentions is that there will be further regulations regarding this, but certainly the language and the word of adoption is mentioned. I think that is quite significant and something exciting to look forward to.
There is one more. The final one is inheritance and wills.
Tim Elliot: Yes.
Ludmila Yamalova: We are trying to show a quick diagram of what the law states in terms of what happens if a non Muslim testator dies here. There are two things that can happen regarding inheritance: (1) if the testator left a will or (2) there is no will.
With regards to a will, and we have talked about this on a previous podcast, there are the DIFC courts and the Will Centre has an option for non Muslims to register their wills, and that has been a very popular forum to register wills. It has been a tested forum through which many wills have already been probated and confirmed. It is also the choice that our practice recommends our clients to use. As per this new personal status law for non Muslims, now there is definitely a provision to register wills as per your own distributions and your own ideas outside of the DIFC as well. Now enforcement of the will is also confirmed at the federal level. However, it is still mentioned that the will has to be registered. Just as it is now registered with the DIFC courts, it would also have to be registered with some other wills authority outside of the DIFC. I would expect either the Dubai courts or the notary or some other specialized will service might appear and will also open in stores for the registering of wills for non Muslims. That is in addition to the DIFC. This law does provide to parties the right to do a will however they want to do it and to register it and it will be enforced.
In the absence of a will, then the law provides for distribution that is quite different from how currently someone’s estate would be distributed if they were to pass without a will and they are non Muslim. It would basically be distributed based on Sharia principles.
For example, a spouse would get very little and only after a fairly complex distribution and adjudication of interests before the spouse could actually get something.
Now, as per the new personal status law for non Muslims – and remember, this is without a will, the testator does not have a will – if the testator dies and was married, then 50% of the estate automatically by default goes to the spouse. It does not matter if the man dies or the woman dies, 50% goes to the spouse. That is huge. That is without any kind of proving of anything. That is by default.
The next question is if the testator had children. If the testator, the deceased, had children, then after the 50% of the distribution of the estate going to the spouse, the other 50% will go to the children in equal shares. If you had boys or girls, it does not matter. They will get equal shares.
If the testator had no children, then the other 50% would go to the parents. If both parents survive, then it goes 50/50 between the parents. If only one parent survives, then 25% goes to the parent and other 25% will go to siblings in equal shares.
If the testator or the deceased is not married, then the distribution would be between the children and the parents, so 50% to the children and then 50% to either the parents, if they are both surviving, or 25% to one parent and the other 25% to the siblings.
But in any event, 50% will go to the children it seems. That is what we have been able to extrapolate from the current text of the law. It may be that with future executive resolutions more color will be given to exactly how this will take shape in practice, but for the time I think this is quite a bit of detail that we have already shared.
To conclude, the law is fundamentally forthcoming and progressive law for this country. It takes into account a lot of the experiences and lessons that we have experienced thus far and embodies and incorporates these lessons by virtue of issuing brand new legislation specifically to tailor and address a different segment of the population, which is quite significant here. I think this is truly revolutionary.
Tim Elliot: That is the longest episode of Lawgical we have done actually.
Ludmila Yamalova: In a long time, I think.
Tim Elliot: In a very long time. If you’ve gotten this far, thank you very much for listening. This time, the new family law for non Muslims, it is Federal Decree 41 of 2022 regarding civil personal status, to be exact. Our legal expert, the real expert, as ever, Ludmila Yamalova, the Managing Partner here at Yamalova & Plewka. Thank you.
Ludmila Yamalova: Thank you, Tim, as always.
Tim Elliot: Find us at LYLAW on social media: Facebook, TikTok, Instagram, LinkedIn. Wherever you get your social updates, you’ll find us there. There is a huge, ever-growing library of hundreds of podcasts, all kinds of legal matters, questions and answers, and all for free if you’d like to listen. To get a legal question answered in a future episode of Lawgical or to talk to a qualified U.A.E. experienced legal professional, click Contact at LYLawyers.com.
