United Arab Emirates

How can a family court decision be appealed?  Although it is easy to obtain information regarding family laws in the UAE, people are generally unaware about the procedural aspects of the family court process. In this article, we will look at the court procedures once a decision is issued by the Court of First Instance in the UAE. Hierarchy of Court: The UAE has three levels in its judiciary comprising of the following: The Court of First Instance The Court of Appeal The Court of Cassation The UAE judiciary allows a three-tier litigation system where a judgement can be appealed twice, to ensure that all aspects of an issue are addressed adequately. The Court of First Instance In family cases, a dispute, whether regarding divorce, inheritance or other family matters, is initially brought before the Court of First Instance, commonly known as the Personal Status Court. This Court has the authority to understand the facts and evaluate the documents and evidence presented in the case and to derive what it deems consistent with the reality of the case and its merits without being subject to review by the Court of Cassation, as long as its ruling is based on valid reasons with a foundation in the papers sufficient to support it (as established in Dubai Court of Cassation Appeal No. 104 of 2018 - Personal Status). After the judgement is issued by the Court of First Instance, the case can be appealed before the Court of Appeal. What is the process of appeal in family cases in the UAE? Once a judgement is issued by the Court of First Instance, either party to the case can appeal the judgement if they are dissatisfied with the whole or part of the judgement issued. As per Article 161 of the Federal Decree Law No. 42 of 2022 on the promulgation of the Civil Procedure Law, an appeal to the judgement must be filed within 30 days of the issuance of the judgement. Court of Appeal The Court of Appeal reviews decisions issued by the Court of First Instance. In case both parties have appealed the decision, the two appeals will be combined to hear and issue judgement. Both the Court of First Instance and the Court of Appeal are categorized as trial courts and have the power to examine the facts and evidence of the case. The Court of Appeal can re-examine the facts and evidence on the request of the parties, if the court deems it necessary. It is legally established according to the settled jurisprudence of the Dubai Court of Cassation Appeal No. 104 of 2018 - Personal Status that the Appeal Court is not obligated to respond to every non-legal inference challenged by the parties, nor to follow them in all their lines of defense and various arguments and reasons, nor to respond to each of them or to the documents they submitted independently, as long as the truth it is convinced of and its evidence provide an implicit response negating all that is contrary to it. Furthermore, the Court of Appeal can uphold the appealed decision and this ruling is considered sufficiently reasoned if the court adopts the reasons of the First Instance Court ruling that it upholds, provided that those reasons sufficiently justify the appealed decision. Court of Cassation If either or both parties to the case disagree with the judgement issued by the Court of Appeal, and  if the appeal is based on a violation of the law or an error in its application or interpretation, the parties may appeal the decision before the Court of Cassation. As per Article 9 of the Federal Decree Law No. 41 of 2024 regarding Personal Status Law, such appeal must be filed within 30 days of the issuance of the judgement. An appeal by way of cassation is essentially an objection against the ruling being appealed. Therefore, it is necessary that the arguments against an appealed ruling are directed at a specific defect upon which the appealed ruling is founded. If the appealed ruling lacks such a defect, the arguments posed by the appealing party may not be accepted.  The Court of Cassation does not re-examine factual matters as they fall within the discretionary power of the trial courts and outside the scope of scrutiny of the Court of Cassation. Possible Outcomes of Appeal If a judgment  is appealed, what are the possible outcomes that can be expected? If a court judgement is appealed before the Court of Appeal then the Appeal Court may either completely or partially quash and decide on the merits of the case. It may dismiss the appeal after confirming the decision of the lower court. In some cases it may also return the case to the lower court for retrial. When does a judgement become final? A judgement by the Court of First Instance and the Court of Appeal will become final on the expiry of the time period within which the judgement can be appealed. The judgments of the Court of Cassation are considered final. Author: Dr. Hassan Elhais

The United Arab Emirates has emerged as a multicultural global city with people from various countries, religions and belief systems. The country continuously works towards building a land where these communities can grow and thrive. This is reflected in the legal landscape of the country that has undergone numerous changes in the last few years. What is the law governing family and personal matters in the UAE? The UAE family law comprises personal laws for Muslims and non-Muslim. The personal status Law governing Muslims is stipulated under Federal decree Law No. 41 of 2024(“Personal Status Law”). The law is based on Sharia principles and is applicable to both locals and expatriates in the UAE. The Federal Decree Law No. 41 of 2022 (“Federal Civil Status Law”) governs non-Muslims in the country except in Abu Dhabi where a separate law namely Abu Dhabi Law No. 14 of 2021 (“Abu Dhabi Civil Status Law”) governs the non-Muslims belonging to that jurisdiction. What is the child custody law in the UAE? Personal Status Law Under the Personal Status Law, Child Custody post a divorce involves specific roles for mothers and fathers. Mothers are generally made custodians of the children, until children reach the age of 18. As a custodian, a mother is required to ensure the day-to-day care and wellbeing of the children. Consequently, children at this age live with their mother. On the other hand, fathers are given guardianship over the children. Guardians are to bear the financial responsibilities of the children and help in key decision making. Under the Personal Status Law, children have a right to choose the parent that they want to live with once they reach 15 years, provided that the court does not deem such choice to be against the wellbeing of the children. Civil Status Law The Federal Civil Status Law and the Abu Dhabi Civil Status law both provide for joint custody of children in case of divorce of the parents. Consequently, both parents are given equal rights and duties over their children. Both the father and the mother must contribute to the day-to-day care and wellbeing of the children, as well as their financial responsibilities. Parents may decide on how to bifurcate this responsibility. However, if they are unable to agree to the terms and conditions of joint custody, they may seek the help of the court. The right to joint custody can be waived by one of the parents. Parents may also be disqualified from custody over the child due to various factors as stipulated by law. In such cases, the other parent will have sole custody of the child. Can a custodial parent stop the other parent from visiting the children? Although parents are given distinct roles in the lives of the children, the law is clear that both parents have a right to visit and spend time with the children who do not live with them. This is clearly stipulated under Article 121 of the Personal Status Law. The Article states that if the child is in the custody of one parent, the other parent has the right to visit, spend time with, and take the child along for overnight stays, according to what is mutually agreed between the parents. If the parents are unable to agree upon a visitation schedule, the court will design a schedule as per the best interests of the children. In case the custodian parent does not allow the other parent to visit, the court has the right to implement the decision by force. In case of Civil Status Law, Article 10 clearly states that children have the right to not have either parent solely dominating their raising and seeing, in order to preserve the psychological health of the child in custody and limit the effects of divorce on the children. The Cabinet Decision No. 122/2023 on the Implementing Regulation of Federal Decree-Law No. 41/2022 gives clear guidelines to govern the visitation rights of the non-custodial parent. The UAE laws regarding child custody are based on the principle of ‘best interests of the child.’ This principle is also followed by the court while interpreting the laws and issuing judgments involving children. It is important for both parents to be involved in a child’s life to ensure their holistic development. Therefore, both the law and the court precedents ensure that divorced parents set aside their hostilities and participate in their children’s lives. Author: Dr. Hassan Elhais

In the UAE, custody of children is governed by the UAE family law, consisting of Federal Decree Law No. 41 of 2024 on the issuance of the Personal Status Law which governs Muslims in the UAE (“Federal Personal Status Law”), Federal Decree Law No. 41 of 2022 on the Civil Personal Status, governing non-Muslims in the UAE, except in the emirate of Abu Dhabi (“Federal Civil Personal Status”) and Abu Dhabi Law No. 14 of 2021 concerning the Personal Status for Non-Muslim Foreigners in the Emirate of Abu Dhabi (“Abu Dhabi Civil Personal Status Law”). Custody of children under Muslim law The Federal Personal Status Law is based on sharia principles. Therefore, after a divorce, as per Article 112 of the law, the father of the children obtains guardianship rights over the children, while the mother of the children is granted custody rights. Custody refers to the day-to-day care and responsibility of the children, including managing their food, clothing, health and wellbeing. Consequently, the custodian obtains physical custody of the children. On the other hand, guardianship refers to the overall supervision of the affairs of the children. In addition to guardianship, the father also obtains the financial responsibility over the children. Under Article 123 of the Federal Personal Status Law, the mother has custody over the children until the children attain the age of 18. However, as per Article 122, children are allowed to choose between the parents when they turn 15, provided that the court deems that their choice is in their best interests. Disqualification of custody rights under Muslim Law A mother, or any other person, may be disqualified from obtaining custody over the children in the following cases: if she suffers from a contagious disease that poses a risk to her children if she does not have the ability to raise children in a good manner, and to oversee their education in case of a woman, if she is married to a man who is not related to her children, unless the court decides that living with the mother is in the best interests of the children if she is convicted of a crime involving turpitude if she is addicted to intoxicants or other psychotropic substances if she does not share the same religion of the child, unless the court decides that living with the mother is in the best interests of the children In certain cases, a mother may obtain custody over her children, but this right may be forfeited. This may occur due to the following reasons: If any of the reason required to obtain custody are not met If the custodian moves to a place, with an intention to live there, against the best interests of the children If she starts to live with a person whose right to custody has been revoked for reasons other than health If the custodian commits reprehensible behavior that affects the child. Can a mother regain custody of children after forfeiture of her right? Article 115(2) of Federal Personal Status Law clearly states that a person can apply to the court to regain their custody right after forfeiture, if the reason for forfeiture has been removed. Moreover, UAE courts prioritizes the best interests of the children while issuing any decisions governing children’s rights. Can a Muslim mother regain custody rights if the rights were rescinded in a divorce settlement agreement? Custody rights may change due to changing circumstances. The father’s right to custody may also be challenged for disqualification due to the reasons provided under articles 113 and 114. Therefore, a mother can claim custody rights over her children based on a change in circumstances. Child custody under non-Muslim Law Federal Civil personal Status Law and the Abu Dhabi Civil personal Status Law allows for joint custody over children, after the divorce of their parents. The Abu Dhabi Civil Personal Status Law under Article 9(1) states that it is the right of the children to be raised and seen by both parents rather than by one of them exclusively, in order to maintain the mental health of the concerned child and to limit the repercussions of Divorce. Consequently, as per Article 16(4), the Abu Dhabi law allows joint custody over the children until the children attain the age of 16. The Federal Civil Personal Status Law, under Article 4(4) allows joint custody until the age of 18. Disqualification of custody under the non-Muslim Law In accordance with Article 33 of Abu Dhabi Decision No. 8/2022 on the Approval of the Regulation of Civil Marriage and Divorce Procedures in the Emirate of Abu Dhabi, an application can be made to the court to disqualify a parent from joint custody in the following cases: if the child is at a risk of exposure of domestic violence or ill-treatment. If a child is subject to inadequate living conditions provided by the joint custodian if a child has specific health needs that the joint custodian is unable to provide. in cases of behavioral, psychological or mental problems of the parent that may harm the Child or expose him to danger or neglect. if the parent fails to devote time to care for the Child if the child does not wish to be under the custody of a parent provided that s/he has reached 12 years of age. in cases of abuse of drugs, alcohol or any psychotropic substances. if the parent suffers from health issues that stops them from carrying out their duties with respect to child care. if the parent remarries Any other reasons determined by the Court. Similar reasons apply for disqualification of custody rights under the Federal Civil Personal Status Law as per Article 18 of Cabinet Decision No. 122/2023 on the Implementing Regulation of Federal Decree-Law No. 41/2022. However, under this law, if a child does not wish to continue living with a parent, an application to that effect may be made if the child has attained 18 years of age. Conclusion Although the family law in the UAE is made up of three different regulations, the children’s welfare and their best interests are always given the most importance while making decisions regarding child custody and child affairs. Dr. Hassan Elhais

The Legal Framework of Alimony under Abu Dhabi Law In a recent development, a woman filed an application for a landmark divorce settlement of AED 1 billion, before the Abu Dhabi Civil Family Court. This follows after the same court awarded an American woman in the UAE more than AED 100 million in a divorce settlement, making it a record settlement in the country. The Abu Dhabi Civil Family Court handles personal status matters of non-Muslims in the emirate of Abu Dhabi. These matters are governed by the Abu Dhabi Law No. 14 of 2021 (“Abu Dhabi Civil Personal Status Law”). Abu Dhabi Civil Personal Status Law Until the issue of the Abu Dhabi Civil Personal Status law in the year 2021, the UAE courts primarily applied the sharia based Federal Decree Law No. 28 of 2005 which did not allow for spousal maintenance after marriage or the division of property not co-owned by the now former wife. This was drastically changed with the issue of the Abu Dhabi Civil Personal Status Law. Under this Law, non-Muslim women in the UAE are now able to obtain alimony under certain circumstances, as prescribed by the law. Who can apply for divorce and alimony under the Abu Dhabi Civil Personal Status Law? As Muslim in the UAE are governed by the Federal Personal Status Law under Federal Decree Law No. 41 of 2024, and non-Muslim outside Abu Dhabi are governed by the Federal Civil personal Status Law under Federal Decree Law No. 41 of 2022, the jurisdiction of the Abu Dhabi Civil Personal Status Law is limited to the following groups of individuals: Non-Muslim nationals in Abu Dhabi Foreigners in Abu Dhabi who hold the nationality of a country that does not apply the provisions of Islamic law in personal status matters If a foreigner in Abu Dhabi has multiple nationality, the nationality used according to his residence in the UAE will be considered. A marriage concluded in a country that does not apply the provisions of Islamic law primarily in matters of personal status A marriage concluded under the provisions of Civil Marriage in Abu Dhabi. Any other case as determined by the competent authority from time to time. Alimony under the Abu Dhabi Civil Personal Status Law Alimony is the court ordered financial support provided by one spouse to another, after a divorce. According to Article 8 of the Abu Dhabi Civil Personal Status Law, upon the issuance of divorce, a wife may make an application to the court for alimony from her former husband. The application form is available on the official court website. The final alimony amount and the duration within which this amount is to paid, is subject to the discretion of the court after assessment of the following factors: The duration of marriage: a longer marriage will result in a higher alimony and vice versa. Age of the wife: the alimony increases with the age of the wife. The economic status of each spouse: this is inferred from an accounting expert’s report prepared by an accredited expert at the Department to assess the economic status of each spouse. The contribution of the husband to the divorce: whether his neglect of the children, abuse or any other actions that led to the divorce Material or moral damage caused by either party to the other Financial damages that affect any spouse due to a unilateral Divorce. In the presence of children, the father must bear expenses and costs of the mother’s custody of the children during Joint Custody, for up to two years as per the findings of the accounting expert’s report. Alimony will also depend on the mother’s commitment, or lack thereof, to the children In all cases, the alimony will no longer be paid to the former wife in case she marries another man. Apart from the above factors provided in the Abu Dhabi Civil Personal Status Law, the court may also consider the factors listed below, as per Article 16 of the Abu Dhabi Decision No. 8/2022 on the Approval of the Regulation of Civil Marriage and Divorce Procedures in the Emirate of Abu Dhabi (“Cabinet Decision”). The level of education and university degrees. The extent to which the wife forfeited her career or its growth to raise the children. Whether the husband stipulated that the wife should not work. The standard of living which the wife and children were accustomed to during marriage. The wife's contribution to the husband's wealth. The wife's health condition. The wife’s employment status and her ability to work. The physical condition of the spouses at the time of the divorce. The wife’s wealth and available sources of income according to the Expert Report. The number of children, their ages and their need for care. The difference in income between the spouses and the financial dependence of one of them on the other Calculation standards adopted by the court According to Article 18 of the Cabinet decision, the court will adopt a standard guide to calculate the alimony as per the following a percentage of the monthly income - the court may decide that a cash percentage of up to 25 % of the husband’s last monthly income multiplied by the number of years of marriage. Percentage of the husband’s property and wealth - A percentage (in kind or in cash) of the market value or the purchase value, whichever is greater, of the husband’s property and wealth, including real estate, financial investments such as shares or bonds, and movables owned or registered in the husband’s name such as valuables and means of transportation of all kinds the value of contribution to any joint properties between the parties. Conclusion Although the Abu Dhabi Civil Personal Status Law and the corresponding Cabinet Decision lay down standards to be adopted and factors to be considered, ultimately, the Court has the discretionary power to decide the alimony amount according to the circumstances of the divorce. It may also increase or decrease this amount and estimate the method of its calculation, its payment and whether this payment must be carried out as instalments, or as a one-time payment, according to the results of the Expert Report after the assessment of the financial situation of the spouses. The Abu Dhabi court thus ensures a decent living for the divorced woman and the children while ensuring that the father does not incur financial costs that exceed his financial capabilities. Dr. Hassan Elhais