In the present times, one of the most predominant social issues that exist all across the globe is divorce. Some of the most common reasons for which most couples seek to apply for divorce are, incompatibility, impotency, infidelity, marriage at an early age, lack of communication, cultural and religious differences, domestic violence and abuse, among various other such reasons. Divorce has become a recourse for many couples to separate from each other for good reasons. The legal framework of the United Arab Emirates (UAE) is highly modelled after the civil law principles and Islamic Sharia law. Sharia law always takes precedence over other codified legislation of the UAE as it is the primary source of all the statutes of UAE and especially the Sharia principles have great relevance in family-related matters.
In UAE, Federal Law Number 28 of 2005, as amended by Federal Decree Number 29 of 2020, on Personal Status, (the Personal Status Law), which strongly incorporates principles and rules of Sharia law, is the legislation that governs all the aspects of child custody, marriage, divorce, inheritance, maintenance and all other such family-related matters.
Article 1 of the Personal Status Law states that the provisions of this law shall be applicable to all the citizens of UAE, unless where the non-Muslims have their own set of special provisions as applicable to their community. It further states that the provisions of this law shall also be applicable to even the non-Nationals of UAE unless they prefer to be governed by their country’s law. It is pertinent to note that, as per article 2 of the Personal Status Law, where the provisions of this law are silent on any subject matter, then the judgement shall be decreed by the courts based on the relevant Muslim doctrines.
Articles 99 to 135 cover the provisions which regulate the dissolution of marriage for the Muslim residents of UAE. Marriage being a contract, therefore, it can be abrogated in any event that causes the continuity of the marriage impossible. Such cancellation of the marriage contract is called divorce. However, such cancellation will be held valid only when it is recognized by the competent courts. As per the provisions of this law, a divorce can be obtained in either of the three ways:
1. Divorce by repudiation;
2. Divorce by agreement (Khul); and
3. Judicial Separation.
Divorce by repudiation is the most common way in which most Muslims prefer to proceed with divorce. Repudiation in the Arabic language is called ‘talaq’. The concept of talaq is a widely known and preferred method of divorce by Muslims all across the globe. However, it is necessary to understand the provisions governing the validity of talaq.
As per article 99 of the Personal Status Law, repudiation is defined as the cessation of the valid contract of marriage which is carried out in the legally prescribed form. Repudiation can either be carried out verbally or in writing and in cases where either of the ways is not possible, then the repudiation can be carried out with the help of understandable sign language.
Divorce can be proceeded as per the terms agreed in the marriage contract either by the husband or the wife, or any other person by the virtue of the power of attorney granted to them, on behalf of the husband or the wife. However, it is necessary that such talaq or repudiation be established before the judge with the help of at least two witnesses testifying of the same or by avowal (an open acknowledgement of truth one believes, supports or intends to do) and also it shall be documented as per the procedures followed in the court. The judge shall decide on the validity of such talaq, only after the above-stated evidence is met. It is relevant to note that the wife can proceed with repudiation only if she has entered into a valid marriage and is not in the waiting period which is also known as the Iddah period. It is necessary for such divorce to be valid that the repudiator is of sound mind and has not initiated the divorce under any kind of coercion. Repudiation can either be retractable (revocable) or non-retractable (irrevocable). In a revocable divorce, the marriage is terminated only after the expiry of the waiting period (Idda). This means that the marriage shall remain valid during the waiting period, which is for a period of three (3) months. However, post the waiting period, if the couple wishes to reconcile, it can only be done by entering into a new marriage contract. Whereas, in irrevocable divorce, the marriage is ended immediately after such divorce has occurred.
In general, every repudiation is revocable, before the completion of the third pronounce of talaq, prior to sexual intercourse or where such repudiation is deemed final by the law. Article 103 of the Personal Status Law, expressly stipulates that the divorce may not be subject to any event contingent to occur in future, or a condition precedent. After the divorce has been initiated, upon the request of the concerned persons, the judges shall determine aspects like the woman’s alimony, as well as the children’s maintenance. The judges shall further decide on the child custody rights.
As per article 108 of the Personal Status Law, in cases where it is a revocable divorce, the husband is allowed to get back the divorcee, as long as such divorcee is still in the waiting period. In cases, where such a waiting period is ended, then the divorcee may return to the husband only by entering into a new marriage contract. Divorce by repudiation shall be valid as long as such repudiation is supported by substantial evidence or if the wife accepted such repudiation. However, before the repudiation is validated by the court, the parties seeking divorce are required to meet a counsellor at the Family Oriented Committee.
This type of divorce is based on the consideration payable by the wife of another person, as agreed by the couple, for terminating the contract of marriage. Such amount of consideration shall be subject to the rules applicable for dowry. However, the couple is not allowed to agree to give up on their rights pertaining to child fostering and their alimony.
Article 111 of the Personal Status Law states that the consideration shall be valid only if the person paying such amount has the capacity to do so, likewise, it is also based on the capacity of the husband to divorce. In cases where the husband is stubborn and disagrees to proceed with the divorce, then the judge shall decide the divorce against an adequate consideration.
The divorce proceedings can be initiated by either of the spouses by registering their case at the Family Orientation Committee for any of the above-stated reasons. As per articles 16 and 98 (3) of the Personal Status Law, before the case for divorce is referred to the court, it is mandatory that such cases have been first submitted to the Family Oriented Committee where the reconciliation process is carried out in order to settle the matter amicably. The reconciliation process is considered indispensable as per the provisions of this law. Where the reconciliation was not possible in the Family Oriented Committee, then the counsellor shall give the person seeking divorce a note of consent whereby the party seeking divorce can approach the court. However, in cases, where both the Family Oriented Committee and the judge fails to reconcile the parties to a divorce, before issuing the order for the divorce, the judge shall appoint two arbitrators from among their parents as nominated by each of the spouses or can also appoint an arbitrator who has the ability and experience to reconcile parties seeking a divorce.
The arbitrators are required to figure out the reasons for which the couples have decided to separate from each other and they have to put in all efforts to bring them reconciliation. Where both the arbitrators fail to succeed in attaining reconciliation between the spouses, then the court shall present the arbitrators’ recommendation to the spouses in a manner giving them one more opportunity to reconcile before issuing the final judgement of separation. If the divorce is sought by the wife or both the spouses because of the husband’s fault, then the two arbitrators shall recommend separation by irrevocable divorce, along with an appropriate amount to be paid by the husband as a result of the dissolution of the marriage. If the divorce is sought by the husband or both the spouses because of the wife’s fault, then the two arbitrators shall recommend separation with an appropriate amount to be paid by the wife. Where reconciliation is impossible and both parties seeking divorce are at fault then, the two arbitrators may recommend separation without any amount to be paid by either of the parties or with an amount in proportion to each one’s share in the fault shall be paid by the parties.
Divorce in UAE can only be initiated before the courts only after the couple has gone through the reconciliation process at the Family Oriented Committee. In cases where the divorce has been done by repudiation, the court shall hold the validity of such repudiation provided such repudiation is supported by proper witnesses and evidence. The government of UAE aims at bringing the parties to divorce from reconciliation before issuing the divorce order, which is why, the reconciliation process at the Family Oriented Committee becomes a mandatory process and where the matter has been reached to the court due to the failure of the reconciliation process, the court still appoints arbitrators in order to bring the parties to reconciliation before issuing the separation order.