A divorce is the cancelling of the valid agreement of marriage between the parties, and the provisions of this act are in Federal Law Number 28 of 2005 on Personal Status. A person of any nationality or religion can request a divorce, but the couple must be a UAE resident for at least six (6) months before filing the divorce. According to Sharia Law, there are two types of divorce:
i. The revocable divorce: the parties will have a waiting period of 3 months where the married will keep valid, and after this period, if they decide to reconcile, they can do it but entering a new marriage contract
ii. The irrevocable divorce: the divorce ends the marriage immediately.
iii. In UAE, we can find two methods of divorce:
– The husband or wife shall say or write “I divorce you” or “talaq” in the presence of a witness. This is considered a valid divorce method, but it will be necessary to register the Court’s divorce. According to article 106 of Personal Status Law, divorce is deemed valid when the judge authenticates it.
– The applicant will issue a divorce case, and the parties will be referred to the Family Guidance Committee. This method is called separation by way of a judgment.
Additionally, for the dissolution of the marriage
the personal status law provides the legal reasons to get the divorce in UAE:
- Divorce by repudiation: Articles 99-109 have the provisions of the divorce by repudiation. Article 99 lays down that the repudiation can be verbal, write, or by a comprehensible sigh (in case of inability). In the husband’s case, having a free choice but for the wife can do it only if her husband gave her complete autonomy (Article 101) and she is not in the Iddah-waiting period after the divorce – (article 102).
- Separation on account of defects: if one of the parties has leprosy, obstruction of genital canals, or insanity before or during the marriage, the spouse could ask for the marriage’s rescission. But if the spouse knew this defect before the marriage, he/she will lose the right to rescission (Article 112). According to article 114, in case of deceit, if one of the spouses would not have entered into the marriage agreement had they been conscious of the deceit, he/she is allowed to use this as a basis for divorce.
- Separation due to non-payment of the due dowry: the personal status law lays down in article 116 that the wife in a non-consummated marriage must be pronounced separated for non-payment by her husband of the dowry, but after consummation of the marriage, it will not be possible the divorce. Nevertheless, the debt of the dowry will remain.
- Separation due to prejudice and discordance: in UAE, the two spouses are entitled to ask for a divorce in case of prejudice, but the Family Orientation Committee must try the reconciliation between both (article 117). If the reconciliation with the committee is not possible, the judge must appoint two arbitrators (parents) and try to reconcile the couple. In the end, if the reconciliation is not successful, the prejudice must be established by the legal means of proof (art 118-120).
- Separation for abstention from support: as per article 124, the wife can ask for a divorce, if the husband does not have funds or abstain from supporting her. According to article 125, the absence of the husband can be in:
- A known place: if the husband has funds, the alimony judgment must be enforced on these funds, but if he has no funds, the judge gives him one month to execute his duty, in case of not compliance, the judge must order the divorce.
- An unknown place: If his whereabouts are unknown and additional there is no evidence that he has funds, the judge must order the separation.
- Separation due to absence and disappearance: the wife is allowed to claim a judicial divorce in case of the absence of her husband who has a known residence, and he has the funds to pay the alimony (article 129); nevertheless, if it is unknown the domicile of the husband, the wife has the right to ask for a judicial divorce, and she will be granted relief only after examination and search for him in the period of one year (article 130).
- Separation for imprisonment: the jailed husband for three (3) years or more, the wife has the right to ask for the divorce after one (1) year of imprisonment (article 131).
- Separation for “ila” and “zihar”: if the husband swore not to have sexual relations with his wife for four (4) months or more, the wife has the right to ask for a divorce (article 132).
Effect of Divorce
It is essential to know what are the effects of divorce, such as:
- There is a mandatory waiting period during which the wife remains without marriage, as a result of separation (Article 136- Personal Status Law).
- For children’s custody, the mother is the custodian, and the father is the guardian. The courts always act in the best interests of the child. Article 156 of the Personal Status Law lays down that a child’s custody under the mother ends when their son reaches 11 and their daughter is 13 years old. After these ages, the father has the right to claim custody. According to articles 143-144, a custodial shall be rational, mature, honest, free from infectious disease, etc.
- Each party will hold all property or assets that are in their name. Additionally, a judge will typically divide joint assets equally between the two spouses.
- Once the divorce is determined, the husband should provide to his ex-wife and children: food, clothing, and accommodation.
The Process to File a Divorce in the UAE
These are the steps to follow to file a divorce in UAE:
1. To register the case at the Family Guidance Section in the respective judicial department in one of the emirates.
2. A conciliator will be chosen by the Court to try to reconcile the divorcing parties.
3. In the conciliatory procedure, an amicable divorce can be concluded at this step. The spouses will need to draft a settlement based on the parties’ mutual understanding and sign in before the conciliator.
4. If one or both parties fail to agree about the divorce or its terms, the conciliator will provide a referral letter to proceed before the Court.
5. They have three months to submit the letter to the Court, and the parties must provide the evidence to the Court.