15 Nov 2022
The Rights of Women In Marriage, Divorce And Child Custody Based On Shariah Regulations In The UAE
Marriages are meant to last forever however; people do turn away from vows taken or life just happens and leads to divorce. According to Article Number 99 of UAE Federal Law Number (28) of 2005 On Personal Status (the Personal Status Law), divorce is the dissolution of a marriage contract in the form provided by law. One of the features of the divorce in United Arab Emirates (UAE) is that it can be done verbally or in writing. The main law dealing with family issues and those relating to children in the UAE is the Personal Status Law Number 28 of 2005, as amended by Federal Decree Law Number 8 of 2019 and Federal Decree Law Number 5 of 2020. The Personal Status Law has been developed from traditional Sharia and takes into consideration the changing needs of modern society. Thus, Sharia Law holds dominance over all codified legislations in the UAE in regards to all family matters and remains a very sensitive yet an important subject as well. The purpose of this article is to provide an insight into the fundamental rights of women as per the Sharia and Personal Status Law and its legal implications in three specific areas namely: marriage, divorce and child custody.
Marriage
Marriage itself is perceived as a legal contract between a man and a woman focused on protecting the rights of the couple and their children. As in other jurisdictions, there are few requirements that couples must meet in order to get married in UAE. The first and the most important condition is concerning the religion of the future spouse. If both the groom and the bride are non-Muslim but both are UAE residents, they may proceed with their marriage at their own consulate in the UAE or at a temple or church according to their religion. If both the groom and the bride are Muslim, the marriage takes place according to Shariah regulations. If only the groom is Muslim, the bride must be a so-called "Ahl Al-Kitaab" (includes only Christians and Jews). Any other religion of the bride will not be taken into consideration, unless she coverts to Islam or to one of the religions recognized by the Islam.
The second condition concerns the age of the future spouse. While the age of majority in the UAE is 21 years, the age of majority is 18 years and anyone who has reached the age of majority before the age of 18 may be permitted to get married with the approval of a judge after showing interest. The law allows a Muslim man to marry a non-Muslim woman, but does not allow a Muslim woman to marry a non-Muslim man without proof of conversion to Islam.
A marriage contract entered into by the parties outside the UAE will be considered valid in the UAE if the original marriage certificate is legalized before the Ministry of Foreign Affairs (MOFA), translated by an official translator into Arabic, and then authenticated from the Ministry of Justice (MOJ).
As per the Personal Status Law, a woman's male guardian and her prospective husband are the parties to the marital contract (the validity of the contract is contingent upon the woman's approval and signature). As per Article Number 39, Personal Status Law, in order for the marriage contract to be valid, the guardian of the future bride, after having her consent will carry on with the procedures regarding the marriage. Any concluded marriage that took place in the absence of the bride’s guardian may be deemed invalid.
There has been a lot of debate as to the aforementioned article with some stating that a woman should have the autonomous right to conduct her marriage on her own without anyone’s permission or involvement and there have been different opinions regarding the same. While others argue that the main purpose of having such a condition to be followed upon marriage, is not to substitute the consent of the woman by her guardian’s consent, it's about keeping her protected and not tempted into a marriage that doesn't match her aspirations. The guardian can only be a sounded mind person and fully capacitated. As for those cases when a woman may not have a guardian, the judge will be the one who will substitute the guardian’s position.
One of the other mandatory conditions concerning the validity of a marriage contract is represented by the dowry. As stated in Article Number 49 of Personal Status Law, the dowry is the money or property offered by the husband to his wife for the purpose of marriage. The broad purpose of the dowry is to ensure a woman's financial independence, and for this reason she must not relinquish it. In situations where the dowry’s amount is not explicitly mentioned in the marriage contract, the woman is still entitled to an equal dowry payable to a bride under the same circumstances. Hence, the payment of the dowry takes precedence over inheritance issues and must be considered final.
Furthermore, during the period of the marriage, the law states that the husband must provide maintenance to both the wife as well as to the children. Maintenance shall cover expenses like the living expenses, food, clothing, housing, medical expenses and even the cost of a housekeeper if the wife is accustomed to having one at her parent’s house. Thus, the maintenance cost should be determined accordingly to the economic situation of the maintainer however, it should not be below a limit sufficient to provide food, clothing and safe shelter. On the contrary, a husband cannot claim spousal maintenance from his wife in the UAE, even if he has been granted custody of the children.
Divorce
The Sharia Law insists upon the subsistence of a marriage and prescribes that divorce should be the last resort if it is not possible to continue a marriage. Unfortunately, there arise occasions where divorce becomes a necessity since it becomes impossible for the parties to the marriage to carry on their union with mutual affection and love. Thus, in such instances, it is better to allow them to get separated than to force them to stay together in an environment of dissatisfaction and hatred.
Divorce may be initiated by either of the spouse or their most trusted family lawyers in accordance with the marriage contract and in line with the subsequent court procedures. A husband may unilaterally divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words that indicate his intention to disown the wife is sufficient. Generally, this is done by talaaq. Whereas, a woman who wishes to divorce her husband may be granted a divorce only on certain grounds wherein she can prove that her husband has physically hurt her or mentally tortured her. A woman can also file for divorce on grounds that her husband has left her or abandoned her for three months, or if he has failed to take care of her or their children’s needs. If a woman claims that one of the above circumstances applies, she must provide evidence for it before a court; it is only then that she is entitled to a fair amount of compensation. However, if a woman is unable to prove that the dissolution of her marriage was caused by any of the circumstances above, her only route to divorce is through obtaining khula - a separation, if her husband is willing to agree to divorce in return for financial compensation. In practice, a woman often relinquishes her right to the mahr— the dowry she received as part of the marriage contract whenever she obtains a divorce through this method.
Some of the statutory grounds for divorce provided in Article Number 110 to Article Number 135 of the Personal Status Law include:
- Physical or mental conditions, for example serious mental health problems, leprosy, impotence or vaginal occlusion;
- non-maintenance;
- Failure to pay the dowry promptly;
- Prejudice and dissension;
- Absence and loss;
- Detention, for example, a jail sentence;
- Ila'a, where the husband swears not to have sexual intercourse with his wife for four months or more unless he goes back on his oath before the four months lapse. Divorce because of Ila'a is irrevocable;
- Zihar, where the husband compares his wife's body to that of another woman who he is forbidden to marry (for example, her mother or sister).
Thus, the list of reasons for divorce is not comprehensive. A woman who files for divorce cannot use them all. A woman filing for divorce must prove that there has been harm. Harm may be considered when a husband is unable to provide for his wife, their marital home and fails to provide for the children or is unable to carry out their expenses or if the husband has been acting violently.
On the contrary, there is no list of reasons or legal grounds as to why a man may apply for divorce. Muslim men do not need a reason or a legal ground or his wife's consent to divorce her (talak), whereas non-Muslim men need a reason for divorce before the UAE courts. However, sometimes the courts allow expat men who are non-Muslims to divorce their wives using talak.
Child Custody and Guardianship
It is very important for parents to realize that guardianship and child custody are both separate issues in the UAE. The Sharia Law principles and more particularly the UAE Personal Status Law governs the issues pertaining to guardianship and custody matters. Articles 144, 145 and 146 of Federal Law Number 28 of 2005 states that the best interests of the child should be taken into consideration by the while deciding on the custody. In UAE, the roles assigned to each parent are segregated. The Sharia Law dictates that guardianship is always with the father. As for the custody, the mother will be the custodian until the son turns 11 years of age and the girl turns 13.
The implication for the women is that the woman becomes the custodian, while the father retains guardianship of all legal decisions. Thus, the mother becomes the caretaker of the child on a day-to-day basis. The custodian’s ability to move to another country is limited, and could potentially lose the right to be appointed as custodian if the move makes it difficult for the guardian to adequately perform his role and responsibilities.
Also, fathers can request for custody of their sons before the age of 11 if they feel their sons are becoming “soft” or they want their sons to “grow up to be more responsible”. Mothers wishing to retain care of their children can argue for continued custody before a court and the court after hearing both the Parties shall award custody to one of the parents keeping in mind the best interest of the child in line with Articles 145, 146(7), 156(1) and 156(2) of the Personal Status Law which provides that the judge should ‘select the most appropriate custodian for the child with regards to the child’s best interest'.
Additionally, once a mother has been granted custody of her child, the Personal Status Law prohibits her from remarrying until a court rule that remarrying is in the child’s best interest. Consequently, if the mother remarries, develops mental health problems, or is charged with a crime as felony, she may be considered as an unfit custodian. However, the same does not apply to fathers. If the mother loses custody, the father becomes the custodian of the child, if a woman, such as mother, sister or wife, takes care of them. Additionally, the UAE law requires that parents obtain the consent of the other if they wish to take their child out of the country. If either parent feels that their consent might not be obtained, a “travel ban” can be issued to prevent the child from going through immigration at the UAE airports and travel.
The Personal Status Law therefore requires women to take legal action to maintain custody of their children (if challenged by their ex-husbands) as they age. A woman who can’t handle the stress of litigation, fears of domestic violence, or do not have the resources to defend their cases in court can be forced to lose her custody. If unable to, the child may remain in the care of the abusive father.
Conclusion
In conclusion, the family aspect is very important in the UAE and most countries that follow Sharia principles. A very important element of regulation in the UAE is the blending of Islamic teachings and civil rules to create together a modern framework without abandoning religious precepts.