An Overview on the Federal Civil Family Law for Non-Muslim Foreigners in the UAE
Private Client Services / UAE
Dipali MaldonadoSenior Counsel,Private Client Services
Ali ZakariaSenior Associate,Private Client Services
Hend Al Mehairi Associate,Private Client Services
In a further step toward modernization and sophistication in the legal framework applicable to personal status matters for foreigners, the United Arab Emirates has established a new federal civil family legislation that applies to non-Muslim foreigners. Currently the Federal Personal Status Law No. 28 of 2005 determines the rights of parties in accordance with sharia but from 1 February 2023, that all changed with the introduction of Federal Law No. 41 of 2022 on Civil Personal Status for non-Muslims (the “Civil PSL”).
Following the issuance of Law No. 14 of 2021 on Personal Status for Non-Muslim Foreigners in the Emirate of Abu Dhabi, as the first law to regulate family matters for non-Muslims. His Highness Sheikh Mohammed Bin Zayed Al Nahyan, president of the United Arab Emirates, issued the Civil PSL on November 3, 2022, which governs civil personal status matters for all non-Muslims residing in the UAE.
The law implements a judicial framework that is both adaptable and advanced for the purpose of resolving personal status matters involving non-Muslims who will no longer be bound by the default position of Sharia, thereby bringing the country more in line with international standards.
Before the Civil PSL was introduced, people from countries that do not follow Sharia were subject to rules that differed greatly from their home countries' laws regarding inheritance, marriage, divorce, child custody, and alimony.
Now, non-Muslim residents of the UAE have access to a more familiar legal framework, including the freedom to marry without a guardian or witnesses, testamentary freedom and the right to equally divide an inheritance between sons and daughters as well as the ability to expedite and simplify the divorce process via a no fault application.
The legislation consists of twenty articles covering a broad range of topics, including but not limited to civil marriage, divorce, child custody and inheritance.
The second chapter of the Civil PSL introduces the concept of civil marriage based on the consent of only the husband and wife, as opposed to also requiring that of a guardian and has led to a number of marriages by non-Muslim residents and tourists.
The Civil PSL Law further lays out the necessary procedures to obtain a divorce; and the possibility of undertaking a no-fault, unilateral divorce which does not require proving any harm caused by the other party to conclude the divorce. We have seen in our practice how this has greatly served to ease the conflicts often embedded in divorce processes and makes a painful process quicker, more efficient and less reliant on blame.
In addition, the rights of both spouses following divorce are addressed, as well as the discretion afforded to the judge in determining the financial rights of the wife based on various factors. These factors include the duration of the marriage, the age of the wife, the economic status of both parties, any instances of fault that may have contributed to the divorce and potential compensation for physical or psychological damages. Additionally, the judge may consider any other relevant matters when estimating the wife's financial rights. It is important to note that the wife's right to receive alimony will be terminated upon remarriage or at the end of her custody period for the children.
In order to maintain family unity and the children's mental health following a divorce, the fourth chapter of the Civil PSL presents a new concept related to the custody of children after the divorce of the spouses, as the father and mother share the custody equally through the application of the concept of "joint custody” regardless of age. This concept has been available in certain Western countries for many years but is revolutionary for the Middle East and those countries that follow Sharia and shows the progressive and expat friendly path in which the UAE’s legislator is travelling.
In the event of divorce, joint custody of any children will be granted by default unless one parent applies for and is awarded full custody or one parent voluntarily renounces their right to joint custody. Case law to date demonstrates that it is not easy to overrule joint custody and as such the legislator’s intention of upholding the best interests of the children by having both parents is unfolding in practice. Both parents will have equal legal authority and responsibility in matters relating to the care and upbringing of the children and they will be required to make important decisions together regarding the children's welfare. However, it is important to note that the specific arrangements for joint custody, including any issues related to decision-making and physical custody, remain subject to the discretion of the court, whose duty remains to always act in the best interests of the children.
The Civil PSL also addresses the subject of wills and inheritance. The right to an equal distribution of inheritance between males and females has been codified as well as the freedom to create a will that bequeaths one's whole estate to whomever he or she so wishes, without fear of Sharia coming into play.
The proof of lineage of non-Muslim foreigners is regulated by chapter six of the Civil PSL, which provides for proof of lineage of a baby through marriage or a declaration of both parents, meaning that a child born out of wedlock in the UAE will be entitled to a birth certificate from the relevant UAE authority.
To provide further guidance and ensure the practical implementation of the provisions outlined in the Civil PSL, an executive regulations and procedures manual will be issued in due course. This manual will serve as a comprehensive resource for understanding and adhering to the requirements of the law, and will offer further clarity and practicality in its application.
By virtue of the fact that the Civil PSL mirrors most of the provisions of the Abu Dhabi personal status law for non-Muslim foreigners, Law no. 14 of 2020 (as amended), a recent case before the England despite the fact that the couple had lived in Abu Dhabi for 14 years.
Lawyers for the wife argued that because the new Abu Dhabi court remains embryonic, the English court could not accept that it would provide ‘substantial justice’. It was submitted that the only judge yet appointed was a Muslim Emirati, and there should be concern that any decision would be ‘substantially influenced’ by Sharia norms.
His Honour Judge Hess disagreed, saying the new Abu Dhabi court had been set up with a view to giving assurance to non-Muslims that if they become divorced, they would be dealt in the same way as they would be in a non-Muslim country.
HHJ Hess added: “It may be that the wife would have a better outcome in the English courts than under the UAE courts (though even this is not certain), but even if this is the case, it would not in my view be correct for me to regard this factor as determinative, nor should I see this as a reason for concluding that the wife would not receive ‘substantial justice’ in the courts of the UAE.”
Whilst it remains to be seen how divorce judgments issued by the Dubai Courts under the Civil PSL will fare, particularly as there is as yet no separate court and proceedings continue to be conducted in Arabic, the case of SA v FA does provide hope for the future with respect to recognition and enforceability of UAE civil divorce judgments in foreign jurisdictions such as England.
Al Tamimi & Company’s Private Client Services department regularly advise both local and expats on all aspects of their personal status matters. Please do get in touch should you wish to discuss any aspect of Federal law No. 41/2022 on Civil Personal Status for non-Muslims or any other personal status matter.
For further information,please contact Dipali Maldonado, Ali Zakaria, and Hend Al Mehairi
Published in November 2023
