Introduction
The government of the emirate of Abu Dhabi instituted an entire civil law in February 2022 which seeks to administer the affairs of non-muslim expatriate residents of the emirate. The Abu Dhabi Personal Status Law as decreed in February 2022 established the Abu Dhabi Civil Family Court and provided for the determination of personal disputes in an extremely secular manner in line with global practices. On November 2022 the federal government of UAE decreed a similar personal status law (“Law”) instituting a similar civil court (“Court”) for every emirate in the UAE. The Law provides that the Court shall have jurisdiction over instances where:
- resident expatriates or those with past working addresses in the UAE;
- in the case of a civil marriage concluded in Abu Dhabi;
- in case either of the parties before the Court has a home or a work address in Abu Dhabi, or;
- in case the child is based in Abu Dhabi.
If the Court has jurisdiction, then the Law will be additionally applicable to the following categories of disputes:
- in the case of locals who are non-muslims;
- in case of marriage and divorce concluded under the Law;
- in case of a non-muslim expatriate holding a resident visa and a passport of a country which does not apply the principles of Sharia; or
- in case the marriage was concluded in a country which does not apply the principles of Sharia Law in aspects of their relevant family law.
On November 2022 the federal government of the UAE enacted provisions which extended the provisions of the Law over the entire country and are slated to come into effect from 1 February 2023, thus providing a secular nationwide framework for the resolution of disputes for non-muslim residents and expatriates in the entire country.
Salient features of the Personal Status Law
Civil marriage
As per the Law, a legally valid marriage is defined as an “everlasting union” between a man and a woman who are both at least 18 years of age. The parties enter into a valid marriage under the Law by making an application before the authenticating judge, proving that there are no legal impediments to the marriage and signing a declaration form to that effect. Thus, under the Law, the institution of marriage is essentially a contract entered into between the parties and enforced accordingly. This ensures that civil marriage is only valid in the instance where the consent of both parties has been obtained.
Divorce
The Law introduces the principle of “No-fault divorces” in the UAE wherein parties eligible under the Law may request a dissolution of the marriage without attribution of fault to either of the spouses. The law also does away with the requirement for undergoing mandatory mediation sessions as well as family guidance counselling sessions with the divorce taking effect by way of a judgement of the Court at the first hearing following the registration of the suit. Additionally, the Law introduces the concept of a unilateral divorce wherein any of the spouses may apply before the Court for the dissolution of the marriage without ascribing blame on the other spouse.
Financial claims post-divorce
Alimony and other financial assistance post the finalisation of the divorce is granted based on multiple factors such as the age of the wife, years of marriage, and economic status of each spouse as per the government's records as determined by an expert appointed by the Court. Additional factors which come into play, such as the custody of the children, the extent of the husband's actions which have contributed to the divorce, moral damages inflicted because of unilateral divorce, overall fault of parties, educational level of the parties, the standard of living, ability to work in the future and the difference in income between the spouses.
The Court-appointed financial expert may determine the claim of maintenance based on the following factors:
- a product of not less than 25 per cent of the last salary and the number of years of the marriage; and
- a percentage value of the husband's assets.
The expert may additionally consider jointly owned assets and the Court may order the husband to make payments in one lump sum or instalments as per the applicable conditions in each case.
Custody of children
The Law provides for joint custody of children until the age of 16 though it states that custodial matters are the Court's discretionary matter. Post that age, children are to be given a choice regarding their custody. Additionally, the Law allows for parents of children aged 12 years or more to individually terminate the joint custody with the consent of the child through a special application submitted to the Court. The right is also available to a parent in case of custodial violence or if the other parent has subjected the child to a harmful environment, or if the child needs special medical care. Other related factors may also be considered such as the addiction to drugs or alcohol of one parent, does not have the time to take care of the children, psychological issues which may affect the child's growth, the marriage of a custodial parent or the presence of a medical condition of the parent with custody which may affect the child's growth. Since custody matters are a part of the Court's discretionary powers the Court's decision is based on natural justice, the best interests of the child and the relevant trends followed internationally in this regard.
Non-adherence to the custody arrangement as provided by the Court is punishable with a fine as well as punitive measures in the custodial arrangement. In extreme cases, the Court may terminate the custody arrangements in case of a dispute between the custodians keeping in mind the well-being of the child and the best interests of the child. The Law also introduces the concept of a travel ban on children classified as “flight risk” which bars the joint custodian to travel alone with the child without the consent of the joint custodian or the Court which is a part of the discretionary power of the Court on the custody of children.
Determination of paternity and inheritance
The Law states that paternity will be based on a legally recognised marriage or proof of paternity and also introduces the provision of wills as a measure for the distribution of the testator's wealth. Parties may register their wills when signing a marriage contract under the Law thus providing an option for spouses who are non-muslim to designate the division of their assets upon their death. They will generally cover assets which are in the UAE. In the absence of a will, the inheritance of the testator upon their death will be divided by giving half a share to their spouse and the other half equally amongst their children regardless of gender. In the absence of children, the applicable share of the inheritance will be shared equally between the parents of the testator or the surviving parent and the siblings of the testator regardless of gender. In the absence of parents, the inheritance will be equally shared among the siblings of the testator.
Functioning of the Court
The Law states that the Court should constitute a single judge with no religious restrictions on the individual. The authorities are mandated to ensure that all forms must be bilingual in English and Arabic and the Court authorities are mandated to complete all litigation procedures in English while ensuring that the claim and decision are provided in both English and Arabic in case neither of the parties is conversant in English. The Law exempts expatriates from providing the required information in Arabic and provides translation services for the parties and the authorities. Parties are allowed to be represented by foreign lawyers who are registered to practice law in the UAE.
Alternate Dispute Resolution for family disputes
The Law provides for the registration of arbitrators whose services may be utilised in case of family disputes. The relevant authorities have the authority to stipulate the relevant qualifying criteria of such arbitrators. The arbitration may be agreed to by the parties either beforehand or after the institution of the dispute which will be presided over by a panel of a single arbitrator or a tripartite panel under the applicable law of the UAE.
Measures of ringfencing wealth
By the passage of the Law, the government of UAE has attempted to ensure a secular legal framework for expatriate residents in the UAE who constitute a large proportion of the population of the country and are largely non-muslim. The law is also an attempt of the UAE government to ensure that the country remains attractive to foreign investment in a region which is moving beyond the petroleum industry and the attempts of Saudi Arabia to open their economy by way of the Vision 2030 plan. From an Indian legal perspective, the Law allows for non-muslim wealthy Indian residents of the UAE to register their marriage before the authorities and ensure the protection of their wealth in absence of children by executing a pre-nuptial agreement which may be executed before the authorities in the UAE. This ensures that wealth management in the UAE will be largely simplified and provide a chance for additional inflow of funds in the country. Since the Law is largely based on the general principles of the law of contract, it in effect allows individuals of high net worth (“HNI”) to ringfence their wealth from messy divorces by way of signing pre-nuptial agreements thus allowing HNIs to shield parts of their individual wealth from the purview of the Court in instances of protracted and contested divorces. This is a welcome shift from the earlier system where the concept of a civil marriage or a marriage contract was not recognised under UAE law and thus expatriate HNIs, which included a large number of Indians were would be liable to have all their wealth dragged before a family court in case of a contested divorce as the concept of a pre-nuptial marriage was not recognised to be valid. The long-term effect of the changes as envisaged under the Law is yet to be tested from the lens of the Court's eventual jurisprudence when such contested cases are judged by the Court. Regardless this will give HNIs a greater degree of assurance to move larger a quantum of funds into the UAE, therefore, providing increasing scope of investments in the local economy.
Conclusion
The Personal Status Law as instituted in Abu Dhabi in February and the Law as applicable to the entire UAE as a nation ensures that most residents are not required to appear before the traditional UAE courts which are guided by the principles of Sharia Law in their working. This is part of the country's efforts to remain attractive to foreign investment and a viable destination for foreign talent and funds in the country. It attempts to balance the country's traditional base, its Islamic background and global legal principles. By ensuring that principles of family law are based on general principles of contract law and providing for recognition of aspects such as wills, no-fault divorces, joint custody of children and gender-neutral inheritance the Law ensures a suitable balance between, modernity and tradition.
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.
