If the number of expatriates in the United Arab Emirates continues to grow, the legal reforms of recent years are bringing Dubai law closer and closer to the law of Western countries, but above all, these reforms aim to secure expatriates and non-Muslims principal subjects of law in the United Arab Emirates, especially in the Emirates of Dubai and Abu Dhabi.
Therefore, it was therefore natural, especially after the SA versus FA case law which saw for the first time in history, a law other than Sharia apply in matters of divorce for non-Muslim expatriates, to see a legislative evolution. This case law is therefore the starting point of the law of February 3, 2023, which reforms family law in order to facilitate its application for non-locals.
In terms of divorce, this law has on the one hand accelerated the process, through the creation of new dedicated courts in each Emirates with the equivalent of a family court judge. On the other hand, this new federal law clarifies the system of alimony, custody, inheritance and filiation. However, only issues inherent to divorce will be discussed in this article.
I – The divorce system in the Emirates
A - Application of the law to expatriates
This new law is therefore intended to be applied specifically to expatriates and non-Muslims. In concreto, applicants must therefore be residents with a valid card but also holder of the passport of their country of origin. With respect to defendants if they are not UAE residents, UAE courts may still have jurisdiction in family matters in certain cases. In particular, if the plaintiff is a UAE resident and the defendant has no declared address or residence. In addition, when the issue of the divorce is custody, if the children reside in the Emirates, the request can be made in the Emirates. The same applies to marriages contracted in Dubai or when the defendant is also a resident.
B – The competent jurisdiction
A problem may lie in the fact that one of the spouses has applied for the country whose passport he holds, which would result in a problem of lis pendens because there are two similar disputes before two courts with jurisdiction to hear about the dispute. In the case of France, the criminal procedure code decides the dispute in favor of the first court to be seized, provided that the referral to the foreign court is regular. For the Emirates, if the criteria set out above are met, the specialized courts will have jurisdiction even if the case is in progress in another country.
II – Dissolution of marriage in the Emirates
A – The methods of dissolution of the marriage
As in France, there are several types of divorce, in particular divorce by mutual consent, as well as contentious divorce. Regarding the first, divorce by mutual consent is indicated when the spouses agree on the main elements of the breakdown of the marriage and its consequences. Indeed, the spouses conclude an amicable divorce agreement on the essential points such as custody, alimony. Thus, this amicable procedure makes it possible to put an end to the marriage within 2 months.
Concerning the contentious divorce, this procedure applies when there are disagreements between the parties or if one of the parties refuses to give his consent to the divorce, the Muslim husband has the right to grant the divorce to the wife without reason or fault.
But, if the wives (Muslim and non-Muslim) so wish, they can file a request with the Family Guidance Service to initiate contested divorce proceedings. Non-Muslim husbands also have this right. The Department will attempt to resolve the issues between the parties and, if that fails, may issue a No Objection Certificate to the parties, who will then continue the divorce process in family court.
Generally speaking, courts will grant a divorce if they find that a spouse is the victim of harm (such as adultery, physical abuse, verbal abuse, physical separation for a long period of time, or non-payment alimony), which makes the courts believe that living together would be impossible for the parties.
If the wife is unable to prove her claim, the case may be dismissed. In this case, the wife would have the right to file a second petition in court for a divorce.
B – Joint custody arrangements
Under the new federal law, custody of the children is shared until they turn 18, after which they will have the option of deciding which parent they want to stay with. Either parent may request that the other parent be removed if they are deemed to have placed the child in an inappropriate environment or other negative situations, which will be further defined in the implementing regulations. If the parents disagree, they can go to court for a custody decision.
As in France, the best interests of the child remain the key factor in any custody dispute. The court can also take other steps in the event of a custody dispute, always looking out for the best interests of the child. In the event that a testimony is necessary, the testimony of a woman will be considered equivalent to that of a man. Financial support will also be determined based on factors such as the length of the marriage, the age of the wife and the financial situation of the spouses. However, the new law makes no reference to the principle of compensatory allowance for the moment.
Akram Cheik, Lawyer
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