Divorce and the entire procedure that comes when a couple decide to separate can be complicated and often ugly.
These complications can be further compounded if the two individuals are living in a foreign country and are not aware of the differences in law in the country of residence and origin.
An expat couple living in the UAE can face this situation.
The laws governing legal separation may be different in the UAE as compared to, say, the UK or India, and the challenges become more complex if there are children involved and assets that may need divvying up.
The situation can be overwhelming and intimidating at the same time.
Here is a basic step-by-step process if you are thinking about getting a divorce.
UAE or home law: what will prevail?
The first thing that comes to mind is whether the UAE law or the law of the expat will be applied in these cases and you must have heard many conflicting stories and versions to it.
Diana Hamade, Attorney at Law & Legal Consultant, UAE Courts & DIFC Courts, International Advocate Legal Services, clarifies here.
“If the parties wish to have the law of their home country applied, they may petition for this before the court.
“This is permissible under Article 1 of Federal Law No. 28 of 2005 (Regarding Personal Status),” she says.
“The article states that this law shall govern the citizens of the United Arab Emirates State unless the non-Muslims of them have special regulations relating to their sect and religion.
“Also, its regulations shall govern non-citizens unless one of them shall hold to the application of his law.
“This means that the law allows relevant parties to apply their own laws to Personal status matters. In divorce cases whereby both parties are from the same country, this poses no problems,” explains Hamade.
If the husband and wife have different nationalities, then the situation may become slightly complex.
“When the husband originates from one country and the wife from another, Article 13 of the UAE Civil Code (1985) applies, demanding the law of the husband to be upheld,” explains Hamade.
This is what Article 13 says: “The law of the state of which the husband is a national at the time the marriage is contracted shall apply to the effects on personal status, and the effects with regards to property resulting from contracting of the marriage.”
It is important to note, whenever the law of the parties’ home country fails to cover an aspect of the divorce procedure, the courts hold discretion to apply the UAE law.
Step-by-step divorce process in the UAE
The overall time taken to complete and formalise a divorce will differ depending on the case.
Some are done amicably with little friction whereas others get ugly in the court, needing more time to resolve.
Hamade explains the divorce process in the UAE begins with either party opening a file before court asserting their decision to sever the marriage and a meeting with the conciliator will follow this.
Even if you have decided to part ways with your spouse, couples are always given time to reconcile.
“The conciliatory procedure is a mandatory process of divorce proceedings in the UAE. It is a forum for the parties to voice their concerns pertaining to the marriage, in the absence of their respective legal representatives.
The conciliation process offers couples the opportunity to discuss their issues and attempt to resolve them,” says Hamade, who is also the only member of the International Academy of Matrimonial Lawyers in the Middle East.
“Amicable divorces can be concluded at this stage. Parties will need to draft a settlement and sign it before the conciliator.
“The settlement does not need to adhere to UAE law or Sharia regulations and can be based on term of the parties’ mutual understanding.”
If it does get ugly and a resolution is difficult to reach, the conciliator will provide the claimant with a referral letter, permitting them to proceed before the court to conclude their divorce case.
“The letter can be submitted to court at any time within three months from the date of issue. Once in court, the particulars of the divorce case fall 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 in their own defence,” adds Hamade.
Who gets custody of the children?
This is where the legal battles can get ugly as in most cases both the parents want custody of their children.
In the eyes of UAE Personal Status Law, the mother and father are granted definitive roles upon the birth of the child.
The father is deemed the guardian, responsible for the financial needs of the child, as well as providing him/her with shelter, reasonable medical care when needed and holding the child’s passports.
The mother, on the other hand, is seen as a custodian, responsible for the day-to-day needs of the child such as food and sanitation.
According to Hamade, the courts will always act in the best interests of the child and, therefore, unless given reason to believe otherwise, they find the best interests of a child to remain in the physical custody of the mother, whilst being under the guardian’s (father’s) supervision.
Minors are treated in the same way (the age of minority is different in the UAE. Boys are considered minors until the age of 11, and girls are considered minors until the age of 13).
How is the division of assets conducted?
This may pose problems, too, especially for an expat wife.
“Under the laws of the UAE, the topic of division of assets causes much grief for expatriates.
“If the law of their own country is not applied, women may struggle to claim more than what the law allows them. Under the law, they may claim only maintenance for their children, and support for themselves for three months after the divorce is final.
“Under the UAE law, a woman can also claim compensation in two other circumstances – if her husband has not supported her for the last year of their marriage, and for moral damage as a result of being divorced.
“The payments can be up to 40 per cent of man’s income, for one year only,” says Hamade.
[Note: The views expressed above are the legal expert's own and do not reflect in any way, the views of Emirates 24|7. Readers are advised to carry out their own due diligence before taking any decision.]
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