Divorce is indeed a very delicate matter, and if children are involved, it should be dealt with the utmost care and conscious. Family Lawyers of Dubai herein wishes to address this reoccurring issue of custody of the child or children, should the mother re-marries following UAE Shariah Law. The very concern of this article is to understand the circumstances where the custody held by the mother can be challenged by the father if she re-marries.
UAE Law apportions several rights and obligations to the parents concerning their children. In usual circumstances, the father is always considered as the guardian, whereas the mother is given the custody of the children. Notwithstanding the foregoing, Courts of UAE will still pass a judgment bearing in mind the best interest of the child as per Article 144 of the Federal Law Number 28 of 2005 regarding Personal Status Law (the Personal Status Law) which is stated hereunder:
"If the custodian is a mother:
- She should not get married to a foreign husband who has consummated the marriage with her unless the court decides otherwise in the best interest of the child;
- Must unite with the child's religion.
If the father is the custodian:
- He must have a female qualified to have custody;
- He must be an unmarriageable relative of the child if the child is female;
- He must be of the same religion as that of the child."
In line with the preceding, the guardian is responsible for the upbringing of the child, whereas the custodian shall maintain regular daycare. In this regards, all major decision regarding the child's education, financial or residence shall be taken by the guardian in consonance with the custodian. Generally, the custody granted to the mother for a girl below the age of 13 years and a boy 11 years of age. Nevertheless, the court may extend the care of the children or may transfer it to the guardian, depending upon the circumstances of the case and the child's best interest.
It is pertinent to note that the mother (custodian) shall maintain the custody even post re-marriage until the father (guardian) files the case for custody. Another significant provision Article 146 (6) allows the mother to retain the custody of the children during the trial, until the judgment, the article reads as follows:
"The mother shall have the right of her children's custody in case of a dispute over the custody unless the court decides otherwise for the child's interest."
Lastly, even if the mother re-marries, she does not automatically lose the custody of the child as per Article 152 of the Personal Status Law. It is apposite to consider that the court has been given utmost discretion to act in the child's best interest in any given circumstances. Therefore, even in cases of re-marriage, the judge may allow you to retain custody of the child if they are convinced that it is in the child's best interest. Besides, your ex-husband shall file the case for custody within six months from the date of knowledge to seek custody of the child, unless there are reasonable grounds of failure to file the custody claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.