The UAE Federal Law Number 28 of 2005 on Personal Status and amendments, commonly known as the “Personal Status Law” defines the concept of legal guardianship. The Personal Status Law of the United Arab Emirates follows Sharia Law, as evidenced by the concept of a “Legal Guardian”. This is an interesting aspect of UAE guardianship law, where the concepts of “Custodian” and “Legal Guardian” exist.
Under Personal Status Law, custody represents the right to look after, bring up, and care for children, without infringing on the person’s guardian’s rights. Under Article 178 of Personal Status Law, guardianship includes the guardianship of a person as well as the guardianship of the property.
Guardianship of a person means the undertaking of all duties of a minor, including supervision, protection, upbringing, education, the direction of his life, proper preparation, and acceptance of his marriage. Whereas guardianship of property means the management of all matters relating to the properties of a minor, protection, management, and investment of such properties as well as protection, legal representation, and the curatorship of the property.
In the event of a marriage breaking due to divorce or the demise of the father, two important facts determine the status of the child; guardianship and custody. Custody is generally returned to the mother, who becomes the legal guardian. Mother is the regular babysitter, and is responsible for every essential requirement of the child, like bathing, feeding, educating, etc., and also, she is the physical custodian of the child.
Guardianship applies to the father, and it is the father who will take care of the affairs, discipline, the orientation of the child, securing all necessary funds for the education and healthcare of the child. In many circumstances, a father is required to make available housing for the child and mother, if the mother is unable to afford her own home.
According to the questions posed above, the obvious response is that parents do not have the same parental rights or responsibilities regarding the status of their children after the divorce. However, the responsibilities of each parent are quite different, with the father shouldering the financial burden and the mother shouldering the day-to-day responsibilities of the child. Usually, Sharia law does not provide similar western concepts of child custody, hence in UAE the result of divorce will trigger the concepts mentioned above.
Article 143 of the Personal Status Law sets forth the general conditions for becoming a custodian, which is:
Usually, the custody of a child belongs to the mother. The law provides for additional conditions that a mother must fulfill to keep her child care role. According to Article 144 of the Personal Status Law, a custodian must have a similar religion as of the child when a woman cannot marry another man. A mother may lose the custody of a child by not honouring these requirements, but this may vary in individual cases. Above all, the judge will decide in the best interest of the child.
According to the law, a mother’s custodianship will get expires when the child reaches the age of 11 years, if it is a boy, and age of 13 years if it is a girl. Again, if there is any conflict regarding the custody of a child exist, then the judge has the power to extend the custodianship with the mother until the boy reaches the age of 21 years or until the girl gets married.
Fathers have a timeline to claim the custody of their children. It is a period of 6 months, starting from the day the boy turns 11, or the girl turns 13 years of age. If the father does not claim the custody of children within these first 6 months, then it will be considered as the waiver of his right to claim the custody of the children.
According to Article 180 of the Personal Status Law, as a custodian, a guardian should also meet certain requirements
The guardianship of the children will be attributed first to the father and then to the patrilineal kin, as per the order of succession. In the absence of a guardian, the court appoints that person’s guardian from among the relatives of the minor.
Article 154 of the Personal Status Law discusses the right of a noncustodial parent to visit or to receive a visit from their children. The venue, time, and the person responsible for taking the children must be agreed upon by the custodian, and with the judge in case of conflict.
A custodian is not permitted to move with the children from one city to another even within the state if such relocation affects the education of the children or prejudices the other parent or causes that parent any hardship or expenses to visit the child. Such situations bring risk to the custodianship and there is a chance of losing the custody of the children. To keep up the legal formalities in order to avail the custody of the child with yourself, one should be in touch with a legal consultant consistently.
A custodian can travel overseas with the children, subject to the prior written consent of the guardian. And if the guardian voluntarily refuses the permission to travel, the case may be taken to the court for the decision of the judge. In addition, the guardian is also required to get prior written consent from the custodian before travelling abroad with the children. Thus, both the guardian and the custodian have the same rights and responsibilities herein.