ARTICLE
11 September 2024

Can Your Ex-Husband Claim Custody If You Are Remarried? (Video)

AM
Dr Hassan Elhais

Contributor

Dr. Elhais, with his vast legal expertise spanning family, arbitration, banking, commercial, company, criminal, inheritance, labour, and maritime law, is dedicated to providing top-tier legal solutions. As an integral member of the team at Awatif Mohammad Shoqi Advocates & Legal Consultancy in Dubai, he contributes to the firm's mission of delivering comprehensive legal counsel across the UAE. The team, as a whole, is committed to maintaining the highest levels of integrity, confidentiality, and discretion. Initially making his mark in criminal and public law, Dr. Hassan made the decision to move to Dubai in 2006, marking a significant step in his legal career. Since joining Awatif Mohammad Shoqi Advocates & Legal Consultancy, he has been an active contributor to the firm's growth and reputation. Dr. Hassan is known for his dedication to transparency in legal dealings and fee structures, a reflection of his solid ethical values.
Divorce is indeed a very delicate matter, and if children are involved, it should be dealt with with the utmost care and consciousness.
United Arab Emirates Family and Matrimonial

00:00 - Introduction

00:51 - If the Custodian is a Mother

01:02 - If the Father is the Custodian

02:42 - Legal Update

Divorce is indeed a very delicate matter, and if children are involved, it should be dealt with with the utmost care and consciousness. Family Lawyers of Dubai herein wish to address this reoccurring issue of custody of the child or children, should the mother re-marry 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 gives several rights and obligations to the parents concerning their children. In usual circumstances, the father is always considered the guardian, whereas the mother is given 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 here under:

If the custodian is a mother:

  1. 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;
  2. Must unite with the child's religion.

If the father is the custodian:

  1. He must have a female qualified to have custody;
  2. He must be an unmarriageable relative of the child if the child is female;
  3. He must be of the same religion as 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 regard, all major decisions regarding the child's education, finances or residence shall be taken by the guardian in consonance with the custodian.

Generally, custody is granted to the mother for a girl below the age of 13 years and a boy of 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 custody even post-remarriage 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 to 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 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 for failure to file the custody claim.

Originally published 28 July, 2024

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.

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