The United Arab Emirates has recently developed its laws on matters of personal status, clarifying and easing the process of divorce in Dubai.
The UAE’s Federal Law No. 28 of 2005 on Personal Status, based on Sharia principles, was originally applicable to Muslims and non-Muslims. Federal Law No. 41 of 2022 on the Personal Status of Non-Muslims, based on civil law, was published in the official Gazette in February of 2023. In Dubai, the application of these two federal level laws on divorce is determined by religion. Both laws allow litigants to opt for the law of marriage of their own law before the relevant UAE Court, except for Abu Dhabi as it has its own Civil Family Law issued in 2021, applicable to non-Muslims and expats with citizenship from countries that do not apply religious laws to family matters.
Divorce for Muslims
Federal Law No. 28 of 2005 as amended by Federal Decree No. 20 of 2019 applies to national and foreign Muslims in Dubai. Divorce under Sharia law provides different options for a husband and wife. A man is able to divorce (Talaq) a woman through repudiation or for harm. Repudiation hearings require two witness testimonies or an avowal before the judge and for harm hearings require two witness statements evidencing the alleged harm. A woman can divorce by agreement (Khul’) or also for harm. A divorce by agreement cannot be rendered without the man’s consent, however it is within the court’s discretion to rule in instances where the husband is acting in an arbitrary manner to hurt the wife. A divorce for harm by a woman is slightly complicated as judges in the Court of First Instance may dismiss the case based on lack of evidence of harm. A woman may appeal the judge’s dismissal or file a new case in which arbitrators, typically family members of the two parties required to act as adjudicators according to the Verse of the Holy Quran, are appointed by the court to determine whether there is sufficient harm to result in divorce. A Muslim woman cannot file for a no-fault divorce unless she waives her rights to her dowry and returns all gifts given to her by her husband upon his request.
According to Article 69 of Federal Law No. 28 of 2005 as amended by Decree No. 20 of 2019, alimony and sheltering are provided to the wife during the waiting period (Idda) of a retractable divorce, in which a marriage may not end prior to the expiry of the waiting period. During a non-retractable divorce, alimony and sheltering are provided during the waiting period to the wife if she is pregnant and sheltering is provided if she is not.
Payments for child support are separate from spousal alimony. Article 78(1) of Federal Law No. 28 of 2005 obliges fathers to support their children born through marriage. The father’s responsibilities include paying for child maintenance for daughters until they marry and for sons until they are old enough to work unless they are students.
Under the Federal Law No. 28 of 2005, the father is the guardian, and the mother is the custodian of the children post-divorce. The father holds the responsibility to financially maintain the children, make decisions regarding education and aspects of their upbringing, and generally cover their affairs. The mother holds actual and physical custody and is concerned with their day-to-day life. Typically, the mother is awarded custody of her sons up to the age of 11 and her daughters up to the age of 13. However, the court has the discretion to decide otherwise based on the children’s best interest.
Divorce for Non-Muslims
Federal Law No. 41 of 2022 is a newly released law applicable to non-Muslim nationals and foreigners in Dubai. Article 8 of this law allows either spouse to divorce without harm, otherwise known as a no-fault divorce. Based on this, divorce occurs in the form of a court order upon the notification of the other party.
Once a divorce order has been issued, a wife may obtain spousal alimony by applying to the court in the instance that alimony has not been agreed upon in the marriage contract. As per Article 9 of this law, the court determines alimony based on the length of marriage, wife’s age, financial circumstances, husband’s contribution to the divorce, financial damages and harm, childcare, and required expenses of the mother’s custody of the children for an interim period not exceeding 2 years. It is important to note that the wife’s alimony is terminated in the event that she remarries or is no longer in custody of the children. Court requests to adjust alimony payments may be submitted annually depending on changes in financial status.
Under Article 10 of the Federal Law No. 41 of 2022, joint custody is the right of a mother and father in the event of divorce and children reserve the right that no parent shall exclusively acquire parental authority and visitation. Based on this, both parents hold equal responsibility for their children post-divorce. The Dubai Courts prioritize the preservation of the mental health of children in custody and aim to reduce the negative effects of divorce.
The Dubai Personal Status Court holds discretionary power to determine the course of action in the best interest of the child in custody when a change is custody is requested by either parent post-divorce. This process is subject to the Implementing Regulations of Federal Law No. 41 of 2022 which are yet to be released by the Cabinet.