Divorce in the UAE
Divorce in the UAE is a big unknown to expats. According to Article 99(1) of UAE Federal Law No. 28/2005, divorce is the dissolution of a marriage contract in a legally prescribed form.
The UAE divorce 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 one of the sources of legislation. The relevant laws regarding family matters are Federal Law No. 28/2005 on Personal Status, as amended by Federal Decree-Law No. 8/2019 and Federal Decree Law No. 5/2020. Federal Law No. 11/1992 on the Civil Procedures Law as amended by Cabinet Resolution No. 33/2020, and Federal Law No. 5/1985 Promulgating the Civil Transactions Code as amended by Federal Decree-Law No. 30/2020 and Federal Law No. 3/1987 Concerning the Penal Code.
The progressive updated measures solidify the UAE Government’s commitment to encourage and promote the country as a more desirable destination for foreigners to live, work and retire. The recent Changes made to UAE family law in November 2020 have had a considerable impact on the way married people divorce in the UAE.
May a couple obtain the divorce in the UAE?
Article 1 of Federal Law No. 28/2005 applies to all UAE residents –Emiratis and expats, Muslims and non-Muslims. Therefore, if you are an expat living/working in the UAE and have a valid residency visa, you can apply for divorce through the UAE family Court in the Emirate that your family resides/works in.
The parties will need to provide their marriage certificate and any marriage contract, passports for both spouses and any children, and their birth certificates. Additionally, each document should be translated into Arabic and attested at the relevant Ministries and Authorities (for example, if you were married in Spain you would need to legalize the documents in Spain and ensure that they bear the stamp of the UAE Embassy in Spain. BUT you should have already done this step in order to sponsor or be sponsored by your spouse).
Which law applies to the divorce?
The position prior to November 2020 was that in the case of a contested divorce, the parties could request that the Laws of the parties’ nationalities should be applied with the husband’s home Country Laws being applied in the event of a dispute as to which Law should be applied. Federal Decree-Law No. 30/2020 now amends Federal Law No. 11/1992 of the Civil Transactions Laws stating that the Laws of the Country where the marriage was concluded will apply to the divorce. This means that the parties can request either the Laws of the Country of their marriage or the UAE Personal Status Law to be applied to their divorce.
However, this new regulation could be an issue considering that many expat couples are now choosing to marry in various destinations around the world, with no personal link to the Country in which they marry.
Moreover, in practice, while many married expats look to use a foreign law for their divorce, the process might be very challenging, in particular in countries that use case law, rather than civil law. In England, the US, Canada, Australia and South Africa there is no statute, there is no civil law – effectively there is no rulebook. Civil law systems are much easier, like Spain, Russia or France.
It is to be noted that if the divorce is to proceed on an amicable and uncontested basis, the parties can submit the divorce under the application of UAE Sharia law and agree terms before engaging in the Court process. The agreed terms will be respected unless they are contrary to the interests of their children, which is rarely the case.
In brief, the amendment offers the possibility for expatriates to request the application of either the law where their marriage was performed or alternatively, they can use the UAE Personal Status Law. It paves the way for ‘divorce law forum shopping’. This is where a party can request to apply the law which is more favorable to them given their individual circumstances.
How is the process of divorce in the UAE?
The first step of a divorce in the UAE begins by either of the spouses opening a case file with the Moral and Family Guidance Section of the respective (Emirate) court asserting their decision to sever the marriage. To apply for divorce, you should be of sound mind and be able to make your own choices. Helpful external information can be tracked in this link.
The Personal Status Court deals with both Emiratis and expats and can issue a divorce certificate in a month. The length of time it takes to conclude a divorce depends on how complicated the case is and how amicable both parties are during the proceedings. Contested proceedings can take about 3 to 8 months – and perhaps longer if the case is highly contested or low performance months fall during the process.
Shortly afterwards, it is compulsory that a counsellor will meet the couple and discuss their problems in an attempt to resolve their issues. In current times, this meeting has been taking place remotely. They are then given a period to try solve their marital problems, before beginning the divorce process. This period may vary subject to the possibilities that the counsellor may observe (if little, he may move the process much faster)
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 laws nor Sharia principles but can instead be based on terms mutually agreed by the parties. If the conciliator agrees with the terms of the settlement agreement (which will happen unless the terms contravene the rights of their children), the parties sign it before the conciliator and then the judge executes it. The parties also obtain the certificate of divorce and the attested settlement agreement at this time.
If the parties fail to reach an agreement, the conciliator will provide the claimant with a referral letter, permitting the claimant to proceed before the First Instance Court. Both parties can choose to have an advocate represent them. Additionally, cases will be heard in Arabic, however, the Court will provide a translator. After a judgment is made, either party will have 28 days to appeal. The Appeals Court process is similar to that of the First Instance Court except that three Judges shall preside over the case. A final appeal lies to the respective Emirate’s Court of Cassation. This Court will review all documents relating to the case to ensure due process. It is to be noted that new evidence may not be produced in any appeal.
It is worth noting that the Emirate of Abu Dhabi has issued Abu Dhabi Personal Law No. 14/2021 On Personal Status for Non-Muslim Foreigners in the Emirate of Abu Dhabi which regulates divorces for Non-Muslims in Abu Dhabi. The Administrative Decision Abu Dhabi No. 8/2022 has also allowed the parties to seek arbitration to resolve any dispute whether prior or after the actual dispute of divorce. For more information about this subject please visit one our our latest posts here.
Can the marriage be nullified?
According to Federal Decree Law No. 30 /2020, the marriage contract can be nullified by the court for reasons of conflict with public policy or conflict with Sharia law.
As an example, the marriage can be nullified if the parties entered into a marriage between:
- partners of the same sex;
- between a Muslim woman and non-Muslim man;
- Muslim with a non-Muslim woman not of Jewish or Christian religion; or
- civil marriage between a Muslim woman and a Muslim man.
However, the court, at its own discretion, will not apply the nullity to safeguard the children 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.
Can spouses obtain a Judicial separation?
Judicial separation does not exist within the UAE, however and according to the latest amendments, if a judgment is issued by a foreign court for judicial separation it will be rendered valid upon the law of the marriage if any.
How is the division of assets and debts in the UAE?
There is no UAE law applicable to the allocation of assets following a marital breakdown. Judges generally uphold the principle that each party retains the assets held in their respective names. The court will divide assets such as bank accounts, properties and shares that are in joint names equally or according to the percentages presented in the evidence.
In the case where a husband had gifted an asset to his wife, the court will take away the wife’s share if she asks for divorce. This would not occur if it was the husband who initiated the divorce, and the wife had no proof of her real contribution.
Following the recent amendment of the Federal Law No. 5/1985 by Federal Decree 30/2020, if a couple was married in a foreign country, but want to divorce in the UAE, the law of the country where the marriage took place shall apply. In that event, the property purchased in the UAE, will be also subject to the law of the marriage. This may be considered one of the most significant developments relating to divorce, separation and division of assets if a marriage is to breakdown.
Is there any spousal maintenance compulsory under UAE Law?
There is no spousal support on separation under Sharia and UAE law. Article 69 of Federal Law No. 28/2005 provides that the wife will be provided support by her divorcee for three months following the divorce (Idda months).
Women can also claim compensation for the following two circumstances:
- for the period of time that the husband failed to provide her with maintenance, as per Article 67 of Federal Law No. 28 /2005; or
- for moral and psychological damages as a result of being divorced, as per Article 68 of Federal Law No. 28/2005.
Maintenance (Nafaqa) is decided on a temporary basis during the time the divorce is not final and the case is pending before the courts. On the wife’s request, the judge can decide to allocate temporary maintenance for the child and wife.
Article 71 of Federal Law No. 28/2005 has been amended by Federal Decree-Law No. 5/2020 to provide that the alimony to the wife will be forfeited in the following instances:
- if she prevents her husband from having her without a legitimate excuse; if she abandons the house of marriage without a legitimate excuse;
- if she prevents her husband from getting into the house of marriage without a legitimate excuse;
- if a judgment or a resolution is made by the court in restricting her freedom in a matter that is other than a right of the husband and that is being executed; or
- if she breaches her matrimonial obligations that are stipulated by the law.
Another situation whereby a woman may be able to claim a financial compensation from her husband is when it was specified at the time of marriage and was within the marriage contract, referred to as a late dowry.
In the UAE, a husband can never claim spousal maintenance from his wife even if he is granted custody of the children.
Who has the custody of the Child?
The rights in respect of the children vary depending on the role of the parent. According to Federal Law No 28 of 2005 for Personal Affairs, the biological mother of the child is the custodian and the father is the guardian. Custody and guardianship are two separate issues that must be addressed individually as parents do not share equal responsibilities for a child in the UAE.
- As a custodian, the mother is responsible for the day-to-day care of the child, which is usually granted to the mother without interfering with the right of guardianship awarded to the father.
- As a Guardian, the father is responsible at all times for providing for the child financially. He is responsible for providing shelter, expenses for food, medical care, education and other necessities. The payment amounts are assessed and determined according to the father’s wealth and are usually limited to 30% of his income, provided that the father can afford it. A maintenance fee guide was issued in 2020 by Abu Dhabi Judicial Department which regulates the maintenance fees according to the income of the father respectively. Dubai Courts is also issuing its own personal status Cases Guide as announced.
The child’s custody under the mother ends when their son reaches the age of 11 and when their daughter reaches the age of 13. The father being the guardian can claim the custody thereafter.
It must be noted the following obligations of the custodian:
If the custodian is the mother, she must:
- Not remarry unless the court decides it’s in the best interests of the child
- Share the same religion as the child.
If the custodian is the father, he must:
- Have a suitable woman living in his home to care for the child (such as a female relative)
- Share the same religion as the child.
What is the cost of obtaining a divorce in UAE?
The cost of a divorce in UAE depend on specific instructions and whether the process is to be amicable or contested. Fees can generally range anywhere between AED 15,000 to AED 60,000 as divorces are processes that are very demanding – save exceptions.
How can you enforce the judgement of the divorce?
If any terms of the Judgment obtained in the UAE have not been complied with, the case will come before the Enforcement Court. If following the commencement of an enforcement proceeding the parties agree to a settlement at the conciliation stage, the case will proceed directly to the Enforcement Court to approve the agreement.
If, as a UAE resident, you wish that your divorce in the UAE become valid in your home Country, Divorce judgments, once made and become final can be translated and attested to be used in home Countries if required.
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**This information does not intend to be legal advice and the content is merely indicative and is subject to change as relates to governmental decisions. We recommend you that you sought specific advice from a family law trained lawyer as to whether the UAE is the appropriate jurisdiction to commence proceedings of divorce, bearing in mind a number of factors including any agreement between the parties (pre-nuptial agreements), any assets of the parties, whether matters in respect of any children have been agreed and whether there are likely to be any issues in respect of enforcement of a UAE Order.