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In Part III of our series on family law related issues for expats in the UAE, we turn our focus to the matters related to child custody, child relocation and abduction, and inheritance, as governed by the UAE laws.
Custody and Guardianship
Under the UAE Personal Status Law, there is a difference between a custodian and a guardian. A custodian is the one who has the physical safekeeping of the child whereas a guardian has the legal or moral custody. A mother is the natural custodian of the child under the UAE Personal Status Law with the father being the guardian.
Usually the mother does not lose custody unless she is unfit to take care of the child or she puts the child’s life at risk. Similarly, guardianship is unlikely to be taken from the father unless he has committed sexual crimes, including towards his children or has been detained for more than a year.
The physical custody is with the mother till the boy turns 11 years old and the girl turns 13 years old if there are no circumstances which affect the interest of the child. The governing rule in determining custody cases is the best interest of the child.
In accordance with the UAE Personal Status Law, the child cannot be relocated out of the UAE without the written consent of both parents. If the custodian (being the mother) wants to relocate the child out of UAE, the guardian (father) would need to approve it.
Even a short visit would require the guardian’s permission. In case the guardian refuses to give consent, the custodian has the right to raise a request to the family courts, which will decide on the request. That said, the Dubai cassation courts have held that the freedom to travel is a constitutional right of every person in the UAE and this right will not be restricted unless a valid reason is provided.
Practically, the courts issue approvals for short visits even if the husband has not agreed, provided some guarantees, in the form of passport of a guarantor, are submitted to the court. The guarantees to be provided are based on the discretion of the courts.
Child abductions do happen in family dispute cases and typically are either through abduction out of the UAE or into the UAE.
If the parents are UAE residents and one parent abducts the child from UAE to another country, the resident parent first has to apply for a custody claim before the UAE courts. Once the parent obtains the custody court order, they may then file a criminal case for child abduction before the UAE courts, followed by filing a request to Interpol for extradition.
When a child has been abducted from another country into the UAE, there are several considerations to keep in mind. One option that could be considered is filing an urgent application before the UAE courts to deliver the child back to the parent if the child is young and abducted from abroad into the UAE. UAE is not a part of 1980 Hague Convention on the Civil Aspects of International Child Abduction and therefore applies its own laws in child abduction matters. The UAE courts are proactive and likely to decide on the case within a few days.
If the wife has child custody through a court order in a foreign country, she may file a criminal case before the UAE courts or request the courts to recognize the foreign court order giving her custody. The UAE can enforce a foreign judgment provided that it is not against public policy of the UAE.
Inheritance is one of the key issues for expats who are settled in UAE.
Usually inheritance law under the UAE will apply unless one of the heirs of the deceased requests that the law of their home country be applicable. That said, real estate in the UAE will be governed by the laws of UAE under Article 17/5 of the Civil Transactions Law.
Non-Muslims can consider the following options for devolution of assets in the UAE: (a) gifts (heba) to one of the heirs which is transferred during one’s lifetime with no consideration; (b) through wills. Non-Muslims are permitted to sign and register a will before the courts at DIFC which do not have to follow the UAE laws and Islamic principles; and (c) foundations or trusts set up in free zones.
This concludes our discussion on the federal laws applicable to personal status matters in the UAE. However, Abu Dhabi has introduced new family laws which will have a massive impact on non-Muslim expats living in the Emirates of Abu Dhabi. Check out Part IV of the series for a review of the Abu Dhabi laws.