UAE / Private Client Services / Family Business
Dipali Maldonado Senior Consultant, Private Client Services
Ali Zakaria Senior Associate, Private Client Services
Custody can be a stressful issue in the context of a divorce or separation between couples, especially if you live in a foreign country where you do not know how the law governs guardianship and custody.
In the UAE, a general rule of thumb, custody usually stays with the mother and guardianship remains with the father. This means that the mother will have the child with her physically and therefore must fulfil the child’s daily needs whilst the father will be responsible for meeting the financial needs of the child and taking major decisions relating to the child’s upbringing.
That though is just a rule of thumb. As Albert Einstein said, “The only thing we can be certain of in this life is that we can be certain of nothing”.
One way to reduce uncertainty in any context is for parties to agree either at the time of divorce or in advance, on what happens in the event of various occurrences. In the specific context of divorce, having a prenuptial agreement that clarifies everything before getting married is the best-case scenario because you know what will happen in the event the relationship ends.
Firstly, let us consider what a prenuptial agreement is. A prenuptial agreement is a contract entered into by the couple pursuant to which the parties agree on an exit plan prior to taking the plunge and getting married. Previously, prenuptial agreements primarily focused on financials, such as rights to property and assets. More and more, however, we are seeing prenuptial agreements extending their remit to matters such as custody, spousal alimony, and child support.
If you have a registered prenuptial agreement and agree on the terms governing custody and visitation of future children in the case of separation or divorce, you are paving the way for future alignment, subject always to those terms remaining in the best interests of the children at the relevant time. The latter is a critical point to note since even where a prenup includes provisions on custody, these provisions always remain subject to what is in the best interests of the child at the relevant time.
On the other hand, if you do not have any agreement on custody and visitation in the case of dispute, you will need to comply with the UAE Personnel status law No. 28 for the year 2005 (“PSL”), which states in Article 107:
"Upon request of the concerned persons and after divorce, the competent judge issues an order fixing the woman's alimony during her waiting period as well as the alimony of the children, determine the person who has the right to foster the child and the right to visit the fostered child. This order is considered as being of summary execution by force of law, and the prejudiced party may appeal this order by all means of appeal prescribed by law."
Further, Article 14, PSL is critical for non-Muslim wives to note because it provides that where the mother is of a different religion to that of her child, she can forfeit her custodial rights once the child has reached the age of five unless the court deems otherwise acting in the best interests of the child.
Article 156, PSL provides that the custodial right of a mother end upon her son reaching the age of 11 years and upon her daughter reaching the age of 13 years, again subject to the court’s discretion acting in the best interests of the child/children.
To simplify, in case of conflict relating to custody of children between married or separated parents, the judge will determine who should be the custodian of the child in accordance with the following rules:
The mother provided she has the same religion as the child;
The mother provided she does not re-marry;
The mother until such time as a male child reaches the age of 11 and a female, 13 years.
The best interests of the child when determining custody always remain the court’s overriding objective. So, there are cases where even when a child reaches 11 or 13, for example, the mother can continue to have custody if that is in the best interests of the child.
With the above in mind, it is always better for couples that are entering a separation and/or divorce to agree on custody, whether at the relevant time or in advance in a pre-nuptial agreement.
In November 2021, Sheikh Khalifa Bin Zayed Al Nahyan, Ruler of Abu Dhabi, issued Abu Dhabi Law No. 14 of 2021 on Personal Status for Non-Muslim Foreigners in the Emirate of Abu Dhabi (“AUD PSL Law"). The New Law was published in the Official Gazette of the Emirate of Abu Dhabi, Issue No. 11, dated 15 November 2021, and came into force on 15 December 2021, one month following its publication.
According to the AUD PSL Law, non-Muslim parents can apply for joint custody in the event of a divorce. Joint custody is defined in the law as “The parents have the right to exercise their roles in raising and caring for the children upon separation, on an equal and common basis, and the children have the right not to be deprived of any of their parents due to divorce.”
The AUD PSL Law provides a mechanism where divorcing parents can agree on equal time being spent for each of them with their children. If the couple does not agree on shared custody themselves, either party can petition the court to settle the dispute and mandate the principle of joint custody.
Through our practice in the family courts over the past 10 years, a recurring theme has been the worry and stress faced by our clients when it comes to the custody of their children.
Among these most asked questions are, “can I extend my custody?” “for how long?” “Can I remarry and still be the custodian?” and many more… Generally speaking, these are subject to the discretion of the judge presiding over the divorce and each case differs from another; there is no one size fits all approach and there is no recurring theme or rule in a case.
In principle, however, for the first question, “can I extend my custody?” the answer is: yes, you can. There are two ways to extend your custody. The first is by having put in place a prenuptial agreement registered with the family court, which includes a provision that the mother will be the custodian of the children until the age of 18. According to UAE law, if the parties have agreed on a custody period longer than the one stated in the law and have legalized and registered this agreement in the family guidance office, this agreement is binding to them until they mutually terminate it, subject to the term remaining in the best interests of the child.
The second way you can extend your custody is by filing a case in the family court, asking to extend it, and proving that your child still needs care and support and that your opponent is not capable of giving the child the same care and support. Ultimately, this will be subject to the evidence a party is able to provide to the court, the counterparty’s defense, and the judge always acting and deciding what is in the best interests of the child.
Overall, the laws of the UAE seek to ensure that whatever is decided when it comes to the custody of a child, whether that decision takes place in prior agreement, a contentious fight or amicable settlement between parties, the child’s best interests remain at the heart of it all. In that, at least, parents can take comfort that any decision made is done so with the ultimate goal of fostering and encouraging the child’s happiness, security, mental health, physical and emotional well-being into young adulthood.
For further information, please contact Dipali Maldonado or Ali Zakaria.
Published in July 2022
