On what basis can a divorce in UAE be obtained?

According to statistics from the UAE’s Ministry of Justice, the number of divorces in the UAE has been steadily increasing over the past few years. In 2018, there were a total of 12,844 divorces in the UAE, which is a significant increase from the 9,847 divorces recorded in 2015. The trend of rising divorces in the UAE is thought to be driven by a variety of factors, including financial stress, cultural changes, and the increasing role of women in the workforce.

Jurisdictions and Laws Governing divorce in UAE

The United Arab Emirates (UAE) is a federation of seven emirates: Abu Dhabi, Dubai, Sharjah, Ajman, Umm al-Quwain, Ras al-Khaimah and Fujairah. This federation was formally established on 2 December 1971. The UAE legal system is founded on civil law principles (most heavily influenced by Egyptian law) and Islamic Sharia law, the latter constituting the guiding principle and source of law (Public Order). UAE legislation is formulated into a number of major codes providing for general principles of law with a significant amount of subsidiary legislation.

The UAE has over the last 30 years expanded its legislation to include a comprehensive body of federal legislation in the form of federal codes of law and emirates’ laws issued as decrees by the ruler of each emirate. The relevant laws regarding family matters are:  Federal Law No. 28 of 2005 (Personal Status Law).

• Federal Law No. 11 of 1992 (Civil Procedure Code).

• Federal Law No. 5 of 1985 (Civil Transactions Code).

The UAE’s Sharia-based Personal Status Law covers marriage, divorce and succession. The courts’ interpretation of family law provisions are based on Sharia, which the UAE mandates is used as the primary legal justification on matters involving family law. The commentary of this law is heavily oriented and related to Sharia principles following the Imam Malik School. The Sharia-based Personal Status Law applies to non-Emiratis, unless they choose their own home country’s law (Article 1, Personal Status Law).

It also applies to all Emiratis “except where non-Muslim Emiratis have special rules relating to their specific creed or sect”. The exceptions to this rule arise when the husband holds two or more passports. Exceptions also arise when the foreign law does not cover a particular aspect of the case, or wherever there is ambiguity in the foreign law or when the foreign law relevant provision is in conflict with Sharia; in these cases the law of the UAE will be applicable exclusively.

To safeguard the rights of non-Muslims, they can have special regulations relating to their religion and sect (Article 1.2, Personal Status Law), but the above exceptions also apply. The Personal Status Law also governs child custody, guardianship and maintenance of children. This law is a complete guide to dealing with all matters of divorce in UAE, custody and guardianship within the UAE (in particular, Articles 142, 143, 144, 149 and 150). The issue of custody relies wholly on the best interests of the child, according to the ruling judge’s discretion, as the right of custody is the child’s right, not the mother’s or father’s.

The judicial system is twofold and includes local judiciary and the federal judiciary. The relationship between the two systems is regulated by Articles 94 to 109 of the UAE Constitution, which describe the broad principles of both systems, while leaving details to the discretion of local judiciaries, which must not violate or contradict the principles laid down by the Constitution.

All emirates have courts of first instance and courts of appeal, either federal or local, in addition to the Sharia courts, which mainly deal with matters of personal status, such as marriage, divorce and inheritance, among others. The primary source of legislation is Sharia (Islamic law), which is based on the Quran and the traditions of the Prophet.

Generally, the court of first instance of each emirate is competent to deal with family law cases lodged with it by citizens who have their domicile or a place of residence in the emirate (Article 5, Personal Status Law). The court also has jurisdiction in other instances, which are included in 14 Articles under the Book of Jurisdiction of the Personal Status Law. In certain circumstances, the UAE courts also have the power to hear actions against foreign nationals with no address or place of residence in the country (Article 20, Civil Procedure Code). If the UAE courts have jurisdiction, they will ignore a choice of jurisdiction clause.

What is Divorce in UAE as per UAE law?

Divorce in UAE, is the dissolution of a marriage contract in a legally prescribed form (Article 99.1, Federal Law No. 28 of 2005 (Personal Status Law)).One of the characteristics in the UAE is that divorce can be verbal or in writing. However, in the case of a verbal divorce, the court must pass it by judgment, through witnesses or by oath. Divorce can be secured by either:

1. The wife divorcing the husband in return for monetary compensation paid by her to him (Al Khol’e).
2. Separation by a court order. The grounds for divorce in UAE are regulated by the Personal Status Law (Articles 110 to 135), as follows:
   • For defects such as insanity, leprosy, impotence, vaginal occlusion and so on.
   • For failure to pay the prompt dowry.
   • For non-maintenance.
   • For absence and loss
   • less he goes back on his oath before the lapse of the four months; divorce in this case
   • will be irrevocable; Zihar, where the husband compares his wife’s body to another woman forbidden for him to marry (mother, sister and so on).

The above list of grounds for divorce is not exhaustive. They are rather limited for a woman applying for a divorce in UAE. There is no list of grounds for a man to apply for divorce in UAE. A Muslim man does not need a ground to divorce his wife, while a non-Muslim man must have a ground for divorce before the UAE courts.

The divorce process in the UAE begins by either of the parties opening a file at court asserting their decision to sever the marriage. A meeting with a conciliator follows. The conciliatory procedure is mandatory in divorce proceedings (Article 98, Personal Status Law). It is a forum for the spouses to voice their concerns about the marriage, without their respective legal representatives.

The conciliation process offers couples the opportunity to discuss their issues and attempt to resolve them. At this stage, an amicable divorce can be concluded and accordingly, parties will need to draft a settlement agreement. This settlement does not need to adhere to UAE law and Sharia regulations, and can be based on terms mutually agreed by the parties. If the conciliator agrees with the terms of the settlement agreement, the parties sign it before the conciliator and then the judge executes it.

The parties also obtain the certificate of divorce in UAE and the attested settlement agreement at this time. If the parties fail to reach an agreement before the conciliator, he will provide the claimant with a referral letter, permitting the claimant to proceed before the court to conclude the divorce case. Once at the court, the particulars of the divorce case are subject to the court’s discretion and the onus is on the parties to provide evidence to support their claims against one another, as well as their own defense.

Non-Muslims can petition for the law of their home country to be applied before the court. This is permissible under the Personal Status Law (Article 1). However, whenever the law of the parties’ home country fails to cover an aspect of the divorce , the courts hold discretion to apply UAE law. A foreign law will not be applied in the following cases:

• It is contrary to public order, morals or Islamic Sharia (Article 27, Civil Procedure Law).
• Its effect cannot be determined (Article 28, Civil Procedure Law).
• Its application is requested by a party who has dual nationality or whose nationality is unknown. (Article 24, Civil Procedure Law).

Nullity of Marriage Contracts Post Divorce in UAE

The marriage contract can be nullified by the court for reasons of conflict with public policy or conflict with Sharia law (for example, if the parties entered into a marriage agreement in the absence of the guardian of the female, or if a Muslim female married a non-Muslim male). However, the court will correct the nullity on its own discretion, to safeguard the children, if any, from the serious impacts of a nullified marriage contract.

If, however, the court finds the marriage contract nullified, the marriage will be severed and the parties will return to their previous status. The Personal Status Law provides for the instances of nullity under Articles 39 and 48.

Judicial separation

Judicial separation does not exist within the UAE. Separation by court order is not the same as what is known as judicial separation in some jurisdictions. Separation by court order is considered as a divorce in the UAE.

What authority do courts possess to distribute financial assets and property in the event of a Divorce in UAE?

Usually, each party retains the assets and property held in their respective names. The court will divide assets such as bank accounts and shares that are in joint names equally or according to the percentages, unless there was evidence to the contrary in accordance with general civil laws. The dispute over assets is filed with the settlement of disputes section of the courts. Through her practice, the author had a case where the joint asset was registered in both names. However, when the court found that the share of the husband was already gifted to the wife, the court decided to give the wife her share and the ‘husband’s share, as it was already given to her as a gift according to the Civil Procedure Code.

What elements are important for the application of the court’s authority during the procedural stages of divorce proceedings in the UAE?

If the parties entered into an agreement outlining the division of property, this agreement is considered only for the assets located within the UAE. Assets held in other jurisdictions will never become subject to any proceedings of family law in the UAE unless the parties agree to have the UAE court apply the foreign law, where sharing of assets is provided by that law.

What is the court’s current position on the division of assets post divorce in UAE?

There is no law regarding the allocation of assets following marital breakdown. Therefore, judges uphold the principle that each party retains the assets held in their respective names. For assets held in a foreign country, the court where the assets are located applies international private law to determine the law applicable to the distribution of these assets.

Can Husbands claim Alimony post divorce in UAE?

In the UAE, a husband can never claim spousal maintenance from his wife even if he is granted custody of the children. The UAE does not provide for sharing of assets, wealth or income on divorce. The only payments made are by the father for the children’s education and living expenses, which include rent and salaries for help at home and which are always assessed and determined according to the father’s income. These payments are limited to 30% of his income.

However, the husband can pay more if he is willing to do so. The courts may have issues with separating assets and with certain ways of paying alimony if it appears too complicated. Higher courts may consider a more structured and complex maintenance order, but not the courts of first instance. There is no spousal support on separation under Sharia and UAE law. The Personal Status Law provides that the wife will be provided support by her divorcee for three months following the divorce (Idda months). During this time the wife is not permitted to remarry due to the possibility of pregnancy, where paternity would have to be verified (Article 69, Personal Status Law).

How Can Women Claim Alimony Post Divorce in UAE?

Women can also claim alimony post divorce in UAE and under the following two circumstances:

• For a period of time that the husband failed to provide her with maintenance (Article 67, Personal Status Law).
• For moral and psychological damages as a result of being divorced (Article 68, Personal Status Law). The payments will also be determined based on the husband’s wealth.

Is it common for alimony to be awarded post divorce in UAE?

The courts comply with the Personal Status Law, under which the amounts of money awarded by the court for maintenance can vary. However, generally, the courts give about 30% of the husband’s monthly income.

It’s worth mentioning that in UAE, the grounds for divorce are limited, this means that the court may not grant a divorce if the couple’s problems are not serious enough. Also, the UAE has implemented a new law that requires a cooling-off period of 3 months before the filing of a divorce, this allows the couple to reconsider their decision and try to reconcile.

The process of divorce in UAE can be quite lengthy and costly, and it’s always recommended to seek legal guidance and representation to help navigate the process.

In conclusion, divorce in the UAE is governed by Islamic law and the personal status laws of each emirate. The process of divorce varies depending on the emirate and the circumstances of the case, and it’s recommended to seek legal guidance to help navigate the process. The court will take into account various factors when making its decision, including the financial well-being of the wife and children, and whether the husband has treated his wife properly.