The law which governs family matters and disputes (including divorce) in the United Arab Emirates (UAE) is the Federal Law No. 28 of 2005 (the UAE Personal Status Law). The Emirates of Abu Dhabi has issued a new law called the Abu Dhabi Law No. 14 of 2021 (the Abu Dhabi Law) which mainly applies to non-Muslims based in Abu Dhabi.
However, the UAE Law continues to apply to Muslims in Abu Dhabi. The UAE has issued a Civil Personal Status Law for non-Muslims at the Federal Level which is effective from February 2023. The New Federal Law comes after the effective application of a non-Muslims Personal Status Law existing in Abu Dhabi. The New Federal Law covers matters related to alimony, custody, inheritance, and parentage and shall be applied between non-Muslim expat residents in case none of them wanted to apply his/her home country’s law in the UAE.
As per the UAE Personal Status Law, now applicable for Muslims in the UAE, the custody of the kids shall be with the mother. Under this law, custody is to keep the child safely and provide care and manage his daily needs. However, the right to manage the child’s affairs such as education and travel is controlled by the father who is the guardian of the child. Custody is the physical safekeeping of the child as commonly known as physical custody whereas a guardian is considered to have the legal or moral custody of the child.
The UAE Personal Status Law envisages that a mother is the natural custodian of the children. When there are no circumstances, which affect the interest of the child, the father’s right to claim custody from the mother shall be only when the boy child turns 11 years old and the girl child turns 13 years old. The courts usually look into the best interest of the child in custody matters. If the mother is considered the custodian, which happens in most cases, then she could claim child support maintenance.
This New Federal Law has introduced changes in personal status matters for non-Muslims in matters related to family guidance mediation, rights between the parties in relation to testimony, inheritance, divorce, calculation of time based on the Gregorian calendar, and joint custody of children. The New Federal Law has introduced civil marriage at a federal level, and provided equal rights to parties in requesting for divorce.
The New Law provides Joint Custody and men and women shall have equal right of custody of children until the age of 18 and subsequently the child shall have the freedom of choice. Either of the parent may request to remove the other parent who has subject the child to an inappropriate environment, and other situations, which will be provided exhaustively in the implementing executive regulations. In the event of disagreement between the parents, they may approach the court to make a decision in relation to custody matters. Child’s best interest remain the governing rule in custody disputes.
What are the types of custody arrangements in the UAE?
In the UAE, as per the UAE family law there are various types of custody arrangements such as:
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- Joint-custody;
- Sole-custody; or
- Third party-Custody.
What is Sole-Custody?
Sole-Custody is a legal term that refers to a situation where one parent or guardian is granted full legal and physical custody of the child. It simply means that the parent with sole custody has the right to make all major decisions regarding the child’s upbringing which includes factors such as education, healthcare, religion and the overall welfare of the child, without consulting the other parent.
What are the Circumstances under which the father of the child is given sole custody?
Under the Federal Law no. 28/2005 on personal status, as per Article 156 the mother of the child shall have the custody of the child until the male child attains 11 years of age and the female child attains 13 years of age.
Further under this law the father can claim for custody of the child or children upon the male child attaining 11 years of age and the female child attaining 13 years of age, if the court deems that the mother is unfit to take care of the child or children and that the father is more suitable to care for the child in such situations for the child’s best interest, the sole custody may be awarded to the father. The obligation lies on the father to establish before the court that the mother of the child is unfit to care for the child.
Under the Federal Law No. 41/2022 on civil personal status law, as per Article 4 the women and men have an equal right for the joint custody of a child until the child, he/she reaches the age of eighteen (18) years old, after which the child shall have the freedom of choice. Article 10 of the civil personal status law, further reiterates that child custody is a joint and equal right of both the mother and the father after divorce, the principle of child custody under the new law is that the father and the mother together share the responsibility of raising the children after divorce.
Article 10 further also states that either of the parties shall become the Sole custodian of the child, provided:
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- an application has been submitted before the court by both the parties to grant custody to whoever is capable of achieving the interests of the child in custody;
- Either of them seeks to waive his/her right to custody in writing before the court (In this instance if the mother waives her right to custody in writing before the court); or
- an application is submitted before the court for excluding the other party from joint custody and for her forfeiting the right to custody for any reason acceptable to the court, such as impediments of eligibility, the danger of the person sharing custody, or the joint custodian having failed to perform her duties.
What are the conditions that must be satisfied, for a father to be the sole custodian of the child in UAE?
The conditions that are required to be satisfied for a father to be considered to be given the sole custody of the child are provided under Article 143 and 144 of the Federal Law No. 28/2005 On personal status, the law lays down the following conditions:
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- the father must be able to make sound judgment, he must be of sound mind;
- he must have attained the age of maturity;
- he must be faithful and loyal;
- he must have the ability to raise the child and provide for the child’s maintenance and care;
- he is safe from any dangerous contagious diseases;
- he is not previously condemned for a crime against honor;
- he must be of the same religion as the child; and
- he must have a suitable woman in his house to take care of the child, such as a female relative.
In conclusion, the courts in UAE will award custody of a child to the parent who is best able to provide for the child’s welfare and interests, in addition the court shall also take into account factors such as the child’s age, gender, religion and personal needs. If the mother is deemed unfit or unable to provide proper care for the child, the father may be awarded the sole custody of the child in the UAE.
Legal Update:
The above information might not apply if both parties are non-muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-muslim expatriate residents in case none of them wanted to apply his/her home country’s law in the UAE. To know more information about this law, please feel free to click this link.