10 Aug 2024
The introduction of a new personal status law for the non-Muslims was passed on 1 February 2023 on Civil Personal Status which brings abundant changes in terms of marriage, divorce, custody, inheritance under the Federal Decree-Law No. 41 of 2022. The New Federal Law implemented extends many of the family law reforms that were introduced in Abu Dhabi in November 2021 to the rest of the country.
The New Federal Law has introduced changes in matters related to family guidance mediation, rights between the parties concerning testimony, inheritance, divorce, calculation of time based on the Gregorian calendar, and joint custody of children in personal status matters for non-Muslims. It also covers matters related to alimony, custody, inheritance, and parentage and can only be applied to non-Muslim expatriate residents in case none of them wanted to apply his/her home country law in the UAE. It also provides equal rights to the parties in requesting the divorce.
The New Federal non-Muslims Personal Status Law
The New Federal Law shall be applied only in the following situations:
- Non-Muslim citizens of the United Arab Emirates, as well as expatriates.
- Non-Muslims residing in the country unless one of them adheres to the application of the law of his/her home country for matters related to marriage, registration of wills, proof of parentage, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17) of Federal Law No. (5) of 1985.
- Parties that are subject to the provisions of this Law may decide to apply laws regulating family or personal status in force in their country instead of applying the provisions of this Law.
The New Federal Law also introduces no mandatory mediation in the family matter before the commencement of the court case. Therefore, granting the divorce shall be excluded from being considered by family guidance committees and will be directly referred to the Family Court to issue a judgment from the first session.
The new amendment in the family law offers equality to men and women in their rights and obligations. Women are granted equal rights in respect to providing witness testimony, inheritance, the right to file for divorce, and joint custody of the children until they attain 18 years old which means that women’s testimony in court will be equal to that of a man wherein there is no requirement to prove the fault of either party to file for divorce. Also, the estate will be equally distributed between the parties. Subsequently, the children after attaining the age of 18 will have the right to choose between their parents.
Recognition of Civil Marriage
The new law allows for a foreign national to enter a civil marriage, subject to certain criteria as mentioned below:
- Both husband and wife must be at least 21 years old and must provide their consent to the marriage.
- The marriage cannot be entered between the prohibited degree of relations as listed in the implementing executive regulations.
Civil marriage is a type of marriage that is implemented and is recognized by the state or civil authorities and not by religious institutions. In a civil marriage, the parties are legally bound to each other by the laws of the state, and their reunion is recognized as a legally valid partnership. Civil marriages are performed by a judge, the justice of the peace, or any other authorized government official. The requirements for getting married and the legal rights and obligations of the parties are determined by the state and are often subject to specific laws and regulations.
Civil marriages are considered as a secular alternative to religious marriages for those who do not wish to have a religious wedding or for couples who come from different religious backgrounds. The marriage procedures are concluded by an officer of the court by submitting an appropriate form which is required by the court. In civil marriages, parties could include their rights during the marriage and after divorce. The contract for such marriages shall be entered into the official register with a bilingual contract form for civil marriage.
The fact that they will be recognized under the new law represents a significant shift because it was not previously recognized by the UAE under the old law, resulting in non-Muslim expats facing the possibility of having their assets subject to family court proceedings in the event of a divorce that is contested by either party.
No-Fault Divorce
Under the new law, the parties have the right to file for divorce without the requirement to prove that harm was done in the marriage by either party which is also known as a “no-fault divorce.” Divorce will be granted at the first hearing session without the need to go through family guidance counseling or mandatory mediation sessions. Either spouse must inform the court of their desire to end their marriage, without any justification, explanation, or blame the other spouse. The parties can request the court for a divorce without the need to provide evidence that any harm was done during their marriage.
Factors for Quantification of the Alimony Amount
Based on the divorce, the court has the right to assess the alimony amount to be granted and which has to be paid to the divorced woman. The New Federal Law specifies several different factors mentioned below to evaluate the amount:
- Wife’s age
- Length of the marriage
- The economic status of each spouse
- Transfer of financial assets
- The magnitude of the husband’s contribution to the divorce
- Compensation by either spouse for any material or moral damage that resulted from divorce
- Financial damage resulting from unilateral divorce
The alimony granted to the wife shall be forfeited in the event she remarries or the custody of the children is declined for any reason. Moreover, the wife has the right to submit a request to increase the alimony after one year should the circumstances change.
Joint Custody
According to the old law, a mother was given custody of her son only until he reached the age of 11 and custody of the daughter until she turned 13. The father could claim custody of the children once the child had reached those ages. According to the New Federal Law, both parties shall have equal rights in terms of custody of children until the age of 18, and subsequently, the child shall have the freedom of choice. In the event of disagreement between the parents concerning custody matters, they may approach the court to decide. If one of the parents has subjected the child to a harmful environment or if the child requires special medical care, other related factors may also be considered, such as addiction to drugs or alcohol of one parent who fails to take care of the children, if the parent has psychological issues that may disturb the child's growth, the remarriage of a custodial parent, or the existence of a medical condition in the parent with custody that may affect the child's growth. The other party has the right to request the court to terminate the custody of the other party.
The new law also stipulates that failure to adhere to the custody arrangement of the child as is decided by the court will be punishable with a fine with punitive measures in the arrangement. In extreme cases, in the event of a dispute between the custodians, the court may decide to terminate the custody arrangements. The governing rule in custody disputes is the child’s best interest. The new law permits parents of children aged 12 or above to exclusively terminate joint custody by the consent of the child which requires a special application submitted to the court.
The new law has also introduced the concept of a “travel ban” on children which refrains the joint custodian of the child from traveling alone without the consent of the other custodian or the court, which is a part of the discretionary power of the court over the custody of children.
No Concept of Forced Heirship
The new law ensures the foreigner the right to draft a will according to their will giving their property to whoever they wish. Furthermore, it also means that half of a person’s estate will go to the surviving spouse in case there is no will in place wherein the other half is to be distributed equally between the children of the deceased. According to the Sharia-based court system, a son would obtain a larger share of the inheritance in the event of the death of the father. The inheritance goes to their parents if the deceased has no children, or the inheritance can be split equally between one surviving parent and the deceased’s siblings. Wills should be registered during the signing of their marriage certificate for non-Muslims. The New Federal Law also describes information on the distribution of inheritance in various other circumstances when the surviving heirs are other than children and spouses.
Parentage Proof
The approval of the father and mother is mandatory to prove the parentage by marriage or by birth, and the birth certificate shall be issued as per the laws in force. The new law states that proof of paternity for non-Muslims will be based on the recognition of paternity or marriage and in the event the parents are unknown DNA tests will be done. This year, new rules allowed mothers who were unmarried to request to get birth certificates for their newborns wherein earlier the presence or proof of a husband was required to legally do the registration of the child.
The New Federal Law also announced that a new decision may be announced which will regulate adoption and surrogacy family, which is another positive step for the residents of the UAE. The law only applies to non-Muslim expatriates who are residing in the UAE unless one chooses to apply the law of their home country or other legislation that regulates family or personal status. These reforms are a comforting development for expatriates as they grant the security they need in regards to personal affairs in the UAE. Non-Muslim expatriates who have been residing in the UAE for a number of years and have called UAE home can feel more protected and safe, knowing that there is a vigorous court system implemented to support them in the event of any and all family disputes which will supplementarily assist them with their estate planning and asset protection alarms in the UAE. It also gives an opportunity to non-Muslim expatriates to plan their inheritance and nominate guardians according to their specific wishes with confidence with the implementation of having a registered will.