According to the American psychological association, the children put in sole custody are under emotional and behavioral problems as it leaves an imprint on the children. They are the innocent victims of divorce who have no right but to become an essential part of an adult affair.
Children involved in the separation process incur long-lasting behavioral problems. The principal law that deals with family disputes and those related to children are the (personal status law no.28 of 2005) governing personal affairs such as marriage, divorce, and inheritance, etc. It has its origin from the sharia law and was drafted keeping in view the changing need of modern society. The law governs all matters regarding the children, keeping an eye for the children’s best interests. The concept of custody in Islamic law is highly sensitive and needs extraordinary prudence and attention, principally on the subject of the right custodian. The interesting side of custody law in UAE is the different roles assigned to mother and father, differences are mostly seen in the description of hadanah (custodian) and wilayah (guardian).
According to the personal status law of the United Arab Emirates Custody and guardianship are separate issues that must be addressed individually as the responsibilities are not shared equally by parents in UAE. “According to Federal Law, No 28 of 2005 for Personal Affairs, the biological mother of the child is the custodian and the father is the guardian. Custody involves the child’s day-to-day care, which is usually granted to the mother without interfering with the right of guardianship awarded to the father. According to sharia law role of the guardian is to financial aid the child at all times, the father is responsible for providing for the child financially. He is responsible for providing shelter, expenses for food, medical care, education and to supervise the general upbringing of the child while it is staying with mother or the other custodians.” If he/she fails in providing necessary needs to the children they move forward with legal procedures with the help of well-qualified family lawyers.
“Where Hadanah means clasp in one’s arm, to embrace or to hug someone, but it has also been implying to nurse, to bring up, or to raise a child. Wilayah (guardianship) is power by which person will establish contracts and other legal conducts, execute them or bear the consequences thereof.”
If all the female relatives are disqualified or absent, then the entitlement devolves to the male agnates.
The custody and guardianship will be defined after the divorce or fathers’ death, general principle states that the mother in such conditions will be the custodian, there are general conditions mentioned in the article 143 personal status law for being a custodian:
In matters concerning divorce, spouses in most matters fight over the custody of the child generally the custodian right granted to the mother, since the courts of law in custodian matters are concerned and inclined towards the child’s welfare (child’s best interest). Mothers are not awarded custody only if they are deemed unfit.
Yes, the law provides for conditions that a mother is under obligation to take care of the welfare of their ward. As per article 144 of the personal status law, in addition to the conditions mentioned in article143, the custodian must have similar religion as the child with due compliance to article 145, the mother may lose custody of the child.
Although the separation and custodian matters are complicated, as per the UAE Personal Status Law, article 156 of the federal law no.28 of the year 2005, the custody should go to the mother until a certain age of the child;13 years of age for the girl child and 11 years of age for the boy child.
Sharia law is mainly focused on the interests of the children regarding the matters related to custody so that they can reach their full potential despite the stress faced by children in the separation process.
In order with this school of thought, in 2016, the UAE proposed a new law (Federal law no.3 of 2016 in respect of children’s rights also known as Wadeema’s Law) to safeguard the rights of children. The law is applied to the children till they attain the age of majority. The child’s physical and psychological interests are the only criteria that matter when deciding the custody matters, according to article 39 of Wadeema’s Law.
While the law of personal status is applied to all UAE nationals and Non-Nationals (with exceptions provided for), Abu Dhabi has a separate personal status law for foreigners.
The latest amendment in the federal law states that this provision will apply to all UAE nationals unless non-Muslims have their laws to apply to their religion and sect.
Non-UAE nationals are subject to the terms of this law unless they follow the laws of their home country.
The recent issuance of law no.14 of 2021 concerning the personal status of non-Muslim foreigners is to regulate non-Muslim family matters in the emirate of Abu Dhabi. The non-Muslims will be allowed to marry and have their marriages recognized in the emirates. The recent decision is a paradigm shift in the emirates legislation to resolve family conflicts following the worldwide best practices.
Chapter 3 of the latest law provides for post-divorce custody to safeguard the cohesion of the family after the divorce and preserve the psychological health of the children. Custody has been seen as a collective obligation in sharia law, it becomes mandatory duty upon the father or the mother in specific circumstances. Once the custody is given to a particular person, it becomes obligatory upon him to ensure that the child is well looked after physically, mentally, emotionally, and religiously. The courts in UAE have majorly refrained from defining the idea of the welfare of a child. While the major role of the codification of the Muslim Personal Status Law was to bring legal certainty.