Tim Elliot: Welcome to another Lawgical Lite. Now Lawgical is still the U.A.E.’s first legal podcast. I say that every time, but it’s still true. Lawgical Lite is the short form version really. Lawgical comes to you from the Dubai-based law firm, HPL Yamalova & Plewka. I’m Tim Elliot. We’re on the 19th floor. We’re distanced socially in Jumeirah Lakes Towers at the firm’s offices. The Managing Partner is Ludmila Yamalova. As ever, it’s great to see you.
Ludmila Yamalova: Great to be here with you, Tim, again.
Tim Elliot: Traditionally, this has been kind of a hard topic to broach, so I’m just going to face this head on today. It’s culturally sensitive, but it’s nonetheless something that happens in life. We’re going to be talking about pregnancy out of wedlock today, Ludmila. Towards the end of last year, we saw a whole host of reforms to the law: Rules regarding the consumption of alcohol, for example, in the Emirates, cohabitation of unmarried couples was another area that was revised and recently decriminalized. So, I guess, to start this podcast it is probably worth briefly revisiting some of those changes in the law first of all.
Ludmila Yamalova: Yes. The changes are reflected in the amendment to the U.A.E. penal code which was amended, as you rightfully pointed out, at the end of last year, and particularly in September of 2020. As you also rightfully pointed out, many of those amendments did take us by surprise. Now, they took us by surprise because the laws or the provisions that they had amended had been in the books for so long and we just didn’t really think that they would be amended. But we were not surprised necessarily because those provisions were so strictly enforced here, and therefore now there is going to be a massive practical difference in our lifestyle here. In fact, I think the changes, while they were a surprise, they really, on the other hand, were not really surprising or should not have been surprising because all the U.A.E. has done has brought its laws up to date with the practices it had already kind of embraced by that time.
For example, like you said, the cohabitation, let’s face it, cohabitation had existed in this country for decades and these cases were not actively prosecuted or penalized. Every so often you would hear of a case here and there, but they were a lot more complex than I think perhaps the media would have described them. There was almost always something else attached to those cases that would make the headlines, but otherwise the authorities here did not really make it their objective to enforce those provisions of the law. That being said, the provisions remained, and therefore, when the amendments came they were a surprise, but a huge relief to all of those who had already obviously made the U.A.E. their home on the grounds that these kinds of provisions, even though they were in the law, they were not being strictly enforced. Cohabitation was one. The other one was alcohol.
Previously, criminal law in fact specifically stated that alcohol was illegal unless you were a non Muslim and even then, there were a number of regulations and licensing requirements attached to the ability to consume alcohol for non Muslims. But the law specifically stated alcohol was illegal. That entire provision has been taken out of the books. That is quite groundbreaking.
Similarly, the provision on the cohabitation, it’s in Article 356, as stated before, that basically a lot of the issues perhaps related to cohabitation and out of wedlock relationships and such were often subject to the particular provision, that provision has also been changed. With that, the legal framework in the U.A.E. has now been kind of brought up to date with what had already been in existence in practice.
Tim Elliot: I mean, is societal terms, these are major reforms here in the Emirates. There are reverberations across the Arab world to some extent, but let’s get onto today’s topic. Now previously, and correct me if I’m wrong, I’ll make a statement here. You can pull me out for whatever I get wrong. But engaging in a physically intimate relationship with someone not married to you was considered a criminal offense, so technically speaking, being pregnant outside of wedlock wasn’t a crime, but having the intimate relationship was. Now based on amendments to the law that we’ve seen, is that the still the case? Was that the correct way to examine the law previously?
Ludmila Yamalova: Yes. That would be an accurate way of representing the law and to paraphrase that, that you are absolutely right, there was never a law that said being pregnant out of wedlock was illegal. In this is very important to highlight because there was never a specific provision in the law that referred to pregnancies out of wedlock. Therefore, we didn’t need a change in the law for that. Now, there was a provision in the law, and that’s Article 356, that stated that any act of indecency, even those with mutual consent, were criminal. Now, acts of indecency, obviously this is a translation from Arabic, but they referred to ultimately as physical intimacy. So, the provision itself was as general as basically it sounds, acts of indecency, even with mutual consent, are illegal. But that is the provision had previously been relied on for any kind of relationships outside of marriage, including pregnancies out of wedlock. It’s that particular provision that was relied on, and therefore, because it’s referred so clearly to basically out of wedlock, so anything that would have stemmed from not being married, including living together and certainly getting pregnant, was considered to be an indecent behavior and therefore criminal. And that is the provision that has been changed. It’s not a provision on pregnancy because it was never one to begin with. It was the provision that stated that any acts of indecency, including with consent, were illegal.
Now, the current language in the law only criminalized indecent acts that were done by coercion or force, in other words, acts like rape, for example. Only those kinds of physical assaults ultimately are now criminalized and that is because they were done without consent or performed without consent. You can see, even though it’s a fairly perhaps nuanced change of words, the facts of the change are quite fundamental and groundbreaking. So now, therefore, physical intimacy, with consent, is no longer criminal, so therefore, the implication is that at least anything that stems from out-of-wedlock relationships should not have criminal implications either.
Tim Elliot: Okay. Is there any legal precedent as yet?
Ludmila Yamalova: We have not seen any, and hopefully that is a good sign because for a legal precedent to exist, there would have to be a case filed. For a case to be filed and to actually progress through the court system to the point where we would actually see a precedent out of it, there would have to be a legal basis that is stated and relied on in the case itself. In this case it would be, for example, well there was a crime committed on the basis of let’s say Article so and so in the law. Well, what article would that be? Since the previously drafted Article 356 is no longer effective, so the current Article 356 would not be of any assistance, for example, to pregnancies out of wedlock because there is the nothing in the law right now that would specifically criminalize or penalize that kind of act. We have not seen much in the courts, and I would like to think that’s a positive development. That’s because if somebody tried to bring a case like that, it just simply would not be acted on because there is no longer a legal basis for the authorities to act on.
Tim Elliot: There is still something of a conundrum here though, back to the original point, pregnancy out of wedlock. Cohabitation is okay, but no legal reform has been announced yet with respect to the legal status of a child born outside of wedlock. If you want to register the birth of a baby, you need, as far as I’m aware, to still present a valid marriage certificate, don’t you?
Ludmila Yamalova: That’s a good way to look at the issue of pregnancies out of wedlock and ultimately delivery of children by unmarried women. That’s because similar to pregnancies out of wedlock, there was never a specific provision or an express provision in the law that criminalized or penalized deliveries of children by unmarried women. There is nothing in the law that specifically made that a crime except that the previously drafted Article 356. So therefore, now what made it illegal or made it impossible to deliver a child by an unmarried woman here before, was not so much the law, but the practice. It’s because when you deliver a child in the U.A.E. you need to have a birth certificate issued by the U.A.E. authorities. Now, for a birth certificate to be issued, there was a requirement of presenting a marriage certificate. Therefore, it’s really more that the practical framework or mechanism that was in place at the time and it remains to be seen whether that mechanism is still in place today, but it was that plus the previous Article 356 of the penal code that made it ultimately impossible, if you will, for an unmarried women to deliver babies here.
But in practical terms, even before the amendment of the law, clinics, for example, were not precluded from seeing unmarried pregnant women. In other words, clinics were not required to have a copy of the marriage certificate in order for them to admit and then supervise and see unmarried pregnant women. Therefore, you could, for example, even in the past you could be pregnant and still have medical attention. Similarly, in the past, again before the law was amended, if you had a medical emergency as a pregnant woman and you ended up in the hospital, and you, perhaps the woman and her baby, had to be admitted to the hospital and be treated in the hospital for extended periods of time, for example, when you have a premature baby, or some other complication to the mother or the child, so even then the hospitals would not deny treatment and would provide treatment and would admit the patient and would ultimately deliver the baby as well. The treatment would not be denied. It’s not that once you were admitted to the hospital, and the hospital would ask you for a marriage certificate and if you didn’t have a marriage certificate, they would transfer you to some sort of a medical facility in prison, that was never the case. But where the issue became is once the baby was delivered in the hospital, and the birth certificates are issued through the hospitals, and for the hospital to issue a birth certificate, that’s when they required a marriage certificate. Then, if you could not present a marriage certificate, or the equivalent or a replacement for it, for example, let’s say the father had passed away before the marriage, or something to that effect, or there was a divorce since then, so you could have either presented the marriage certificate or a divorce certificate or some sort of death certificate, so if you didn’t have that kind of a document at that time, then it was deemed to be a relationship or a child born out of wedlock. Then, under the previous provision, that was considered criminal. Do you see? So it really came in, in practical terms, the issue arose at the time of issuance of the birth certificate. So now, you take the same process and once again, clinics have always been seeing unmarried pregnant women throughout pregnancies, the hospitals would always accept them, but at the point of delivery and issuance of the birth certificate, we don’t know what happens now, what the practical applications of this new law have been or are as of now because it has only been about three or four months since the law was introduced. But the presumption is that it should just be a matter of time before the issue of the birth certificate would also be ironed out along with this law. Because now if a married woman delivers a baby in the hospital, she can’t at least in legal terms, cannot be accused of having breached any laws, in particular criminal laws because there is no law that we are aware of that you can breach because the previously asserted law is no more. Therefore, if there is no criminal offense, then presumably there shouldn’t be much of an obstacle for the authorities to issue the birth certificate since there has not been a violation of the law. But this is more of a legal and cognitive or analytical extrapolation of the amendments in the law than a practical example of what is happening today. This is the presumption of how the law will be applied and therefore the practices will be updated along with it. But for now, we don’t have a case study to confirm the law has already been applied this way, though from our discussions with the doctors and the hospitals, it seems that the practices are softening along with the new laws and it’s not unreasonable to expect that the hospitals and the clinics will have updated their practices along the way in the not too distance future.
Tim Elliot: That’s an interesting point because it certainly seems as though the changes to some of the laws last year, particularly for those of us who have lived in the area for some time, certainly kind of represent a softening in attitudes. That is for sure. A lot happened and a lot happened fast. I mean, I remember you and your team here preparing to examine the changes, and it was a huge topic because there was a lot to do. I guess times change, and the law has to play catchup from time to time.
Ludmila Yamalova: Well, for sure, because the practice had already changed, even before the law was changed, the practice and the lifestyle in this country had changed and went above and beyond what was in the books, and so now it is just the legislative instruments that are being updated to bring them in line with their already existing practices and certain lifestyles that were accepted already in this country, which to be honest with you, is the case everywhere else in the world. The world moves on and things evolve and develop and then laws usually always play catch up.
Tim Elliot: A tough question to finish, but we are in a Lawgical Lite situation. It might only be possible to offer an anecdotal answer, but from a legal perspective, would you phrase how pregnancy outside of marriage is now viewed?
Ludmila Yamalova: I’ll tell you from a legal perspective, there is nothing in the law that would deem pregnancies outside of wedlock criminal or against the law.
Tim Elliot: Right.
Ludmila Yamalova: So, from a legal perspective. Now from a practical standpoint, it’s, I think, given culturally and practically pregnancy outside of wedlock is not a new thing. The two have been fairly common and I think the societal perception and acceptance of this concept is a lot less strict or stringent as perhaps some may think. But it’s still not a clear-cut issue. That’s why I don’t want to introduce false hopes or be overly ambitious about what it means because I don’t want to encourage anyone to do things that ultimately might prejudice there is always time that needs to pass between the law has been amended and the time when the law is applied. I would say if you are thinking of getting pregnant, then let’s just wait a little longer until we actually have case studies and concrete confirmations that if you were to deliver a baby in the U.A.E. now out of wedlock, that you would be issued a birth certificate and could live a normal life. But certainly, when those case studies become available, we will most definitely cover them in another episode of Lawgical.
Tim Elliot: I guess so. That’s another Lawgical Lite for today, pregnancy outside of marriage here in the U.A.E. As always, the legal expert here on Lawgical Lite, Ludmila Yamalova, the Managing Partner here at Yamalova & Plewka. Thank you once again.
Ludmila Yamalova: Tim, always a pleasure. Thank you.
Tim Elliot: If you have a legal question you’d like answered in an episode of Lawgical, or Lawgical Lite, the quickie version, or if you’d like a consultation with a qualified U.A.E. experienced legal professional, you can now WhatsApp us, 00971 52 525 1611, or head to LYLawyers.com and click Contact.
