20 Apr 2022
Where there is a will, there is a way. But what if there isn’t a will? The United Arab Emirates (UAE) comprises of an expatriate population of over eighty (80) percent with around twenty (20) to twenty-five (25) percent of them belonging to the non-Muslim community. This gives rise to myriad questions regarding what laws are applicable for non-Muslims and what consequences befall families of those who die intestate in the UAE. Such aspects must be understood in terms of the unique legal framework in the country. Regular amendments in personal laws have been made to bolster economic growth by making laws more suitable for non-Muslims and expatriates. The legal framework in the UAE is predominantly based on civil law principles with Sharia law as the guiding force behind public order. Federal Law Number 28 of 2005 (Personal Status Law), Federal Law Number 11 of 1992 (Civil Procedure Code), Federal Law Number 5 of 1985 (Civil Transactions Code) are the three major legislations that deal with matters concerning Family Law.
Article 1 of the Personal Status law stated that Sharia-based Personal Status Law applies to non-nationals so long as they choose to be governed by the laws of their home country. Exceptions to this would include a situation where a husband holds two passports; there is either an ambiguity in the laws of the foreign country; or a conflict with the laws of the foreign country with that of the UAE. Under such circumstances, laws in UAE would be made applicable on the concerned parties. Subject to the abovementioned exceptions and in an attempt to safeguard the rights of non-Muslims, article 1.2 of the Personal Status law allowed for special regulations to be followed according to their religion or sect. Recent amendments to the Personal Status Law and Civil Transactions in November, 2020 have changed this position and allowed non-citizens irrespective of their religion to choose laws that govern issues such as inheritance, divorce, maintenance and custody of their home country or country of origin.
Division of Assets
Mr. Agarwal is a 58-year-old Indian and a Hindu, dies intestate in the UAE. He is survived by a daughter and a wife. He owned a freehold property and a car in the UAE, with UAE Dirhams eight hundred thousand (AED 800,000) in his bank account. What laws would apply to him and how would his assets be distributed among his heirs? Article 17(1) of the Civil Code states that the laws of the home country of the deceased may be applied in matters of inheritance at the time of his death. However, where a will refers to the disposal of real estate in the UAE, article 17(5) states that UAE law would apply to aliens disposing of their property in UAE with the exception of freehold areas. Non-Muslim residents in the UAE might possess registered wills for assets in their home country. However, earlier, in the absence of a registered and recognised will for one’s movable or immovable assets in the UAE, inheritance laws of UAE would apply. Practical ramifications would have included freezing of bank accounts for existing or contingent liabilities, cancellation of dependents’ visas, re-appropriation of assets, possibility of estates being distributed as per Sharia Law and a series of visits to the court. Access to the assets of the deceased was restricted unless granted by the local court.
In light of such problems faced by non-Muslims in the UAE, laws were formulated to ease the process of division and transfer of assets. Until now, family members of a deceased person, particularly in acrimonious cases, could have found that assets were divided under Islamic law, which they would not have been subject to otherwise. Now, the citizenship of the person who dies intestate is what determines the law that is applicable to him or her. Earlier, Sharia law would automatically be set in motion if the non-Muslim expatriates had not petitioned for the application of the laws of their home country upon death. This has been solved by allowing laws of the country of citizenship to apply automatically and if the person has a registered will in the UAE, the same might be executed.
The DIFC Wills Service Centre permits non-Muslims to formally register wills in the English language according to the principles of testamentary freedom and enables them to dispose of their Dubai and Ras Al Khaimah based assets upon death as they see fit. Powers to enforce such wills are provided to the heirs of the deceased with probate grants issued by the DIFC Court. Order Number 3 of 2019 in respect of DIFC Courts’ Wills and Probate Registry Rules came into effect on 30 June, 2019. This provides for the inclusion of assets worldwide under a DIFC Will by testators. It was held in a judgment by the Court of Cassation contrary to the law laid down in Personal Status Law that for non-Muslims, laws of the deceased’s religion can be applied in case of death even if the distribution of assets as per their law differs from that of Sharia. Sharia rules and principles are not breached as far as none of the parties are UAE nationals or foreign Muslims.
Maintenance
The law governing divorced couples wasn’t as clear as it is today. Earlier, if the couple had different passports, then the citizenship of the husband would apply for matters concerning divorce. And if the law of the individual’s country failed to cover an aspect of the divorce procedure, then the courts could apply UAE law instead. Post the 2020 amendment, Personal Laws of the country where the marriage took place will be applied. Laws of inheritance, maintenance, custody would all be governed by laws of the country where the marriage took place. The primary source of funds sufficient to maintain a child lie on the father and are spelt out under article 78 of the Personal Status Law.
Alimony of the child with no financial resources lies with the father until marriage for a girl and for a boy, until he is able to earn a living. If the elder child is unable to earn a living due to disability or any other cause, the funds may be drawn from the father in the absence of another monetary source. For a divorced or a widowed daughter, alimony is on her father unless she has funds of her own. A wife can make a claim for compensation for non-payment of maintenance under article 67 of the Personal Status Law. A child can also make a claim for their education costs against their father, as maintenance is expected to be paid until the child has completed their education. The UAE is not a signatory to the Reciprocal Enforcement of Maintenance Orders (REMO); however, foreign financial orders can be enforced within the UAE subject to certain conditions as provided for under article 235 of the Civil Procedure Code. These conditions include that the foreign judgments be final and irrevocable and all documents be translated into Arabic and notarised by the relevant authorities. However, since the amendments provide for the applicability of laws of the country of origin of expatriates, this would mean that an arrangement for translation would have to be made by the courts rather than parties.
Custody
Articles 146 and 156 of the Personal Status Law are applicable in case of Custody. Guardianship and Custody are two varied concepts. Generally, in the UAE, custody of a child is given to the mother while guardianship is given to the father. Guardianship involves supervising, protecting, educating and preparing a child for life, and (when necessary) giving the necessary consent for the child to marry. Guiding the child in terms of morality, education and religion as well as making important decisions about the child’s health and medical treatment would fall under the responsibilities of the guardian. Custody, on the other hand, refers to the nurturing or caring of the child and for meeting the child’s day to day needs. The custodian has the child living with them and statutory provisions allow for the mother to have custody of a boy till he turns eleven (11) and a girl till she turns thirteen (13). Fosterage is also a preference given to mothers Much of the issue regarding custody and guardianship were left to the discretion of a local judge. The guiding principle by which local courts decide is on the best interest and well-being of the child.
If the mother is found unfit to meet the criteria for a custodian, the Courts can move custody to father, maternal grandmother, paternal grandmother, maternal sisters, paternal sisters, maternal niece in that order. Under UAE Laws, if the mother decides to settle in another country and leads to the inability of the father to fulfill his duties as a guardian, she may lose her right to custody of the children. On the contrary, the father (usually the guardian) may take the children to live abroad permanently as long as the reason is valid. The mother then has a choice to either join them or not if she wishes to remain a custodian. Under UAE law, both parents must seek consent from each other if they want to take the child out of the country. If either parent feels that their consent might not be obtained, they might prevent the child from crossing immigration at the UAE airport by obtaining a ‘travel ban’. In a judgment, the Dubai Court of Cassation stated that “seeing a child is a right of both parents. However, such a right must not conflict with the right of a child or the interest of a child, since the interest of a child comes before the interest of parents”. With the increasing expatriate population in the UAE, laws have constantly evolved to cater to the needs of non-Muslims and foreign nationals. Efforts have been made to accommodate the application of laws of the home country of persons so long as they do not run contrary to public policy. Expats are however requested to have a registered will in the UAE so as to protect their movable or immovable assets either in the UAE or in any part of the world, in the event of death. Citizenship has been seen as a decisive factor in determining what legal framework one would be subject to in the sphere of personal laws.
Court of Cassation in Case No. 90/2006
Court of Cassation Judgment 252/2006 on 28/11/2006.