Divorce and real estate: 3 aspects to keep in mind
Real Estate & Construction and Hotels & Leisure
Ali ZakariaSenior Associate,Private Client Services
Raneem Salha Trainee Solicitor,Construction & Infrastructure
In the realm of family law, property ownership and asset management play an important part and feature frequently in a marital context. These factors are brought to the fore when a marriage suffers a breakdown, and a divorce is on the horizon. Understanding the intersection of family law and real estate law is essential for UAE citizens and residents navigating the complexities of matrimonial disputes and property rights.
In the UAE, whilst there is no specific law that deals with property allocation in the event of a divorce, Federal Law 28 of 2005 Regarding Personal Status (the “Law”) does shed light on three central aspects to consider when contemplating property matters within the context of potential divorce proceedings. These are (i) the independent financial liability of spouses; (ii) properties jointly owned or contributed to by the couple; and (iii) the family home/custodian house. These three aspects are considered further below.
Article 62 of the Law emphasises the autonomy of each spouse in owning and managing their respective assets. Importantly, this prevents either party from claiming equitable ownership of property solely based on their matrimonial relationship. This provision underscores the importance of delineating financial interests within marriage and safeguards individual property rights.
The Law is clear; where property is held solely by one party in the marriage, the property will remain in their sole ownership and their partner will not be able to claim ownership or benefit from that property. Where a property is held jointly by the spouses, the legal perspective is similar to that of two unrelated parties, jointly owning a property. Each will own 50% unless they have agreed otherwise.
In cases where a couple has jointly invested in a property but the name on the title deed appears in the name of one spouse alone, it is important to seek legal advice regarding the rights and obligations of each party and the options to dissolve and/or deal with the ownership of the property. This approach serves to mitigate potential challenges and conflicts arising from shared property interests.
In some circumstances, it may be that one party wishes to demonstrate a significant financial investment in the property, which might entitle them to a larger portion of the proceeds. However, making such a claim requires the party to prove it to the court via substantive evidence. The other spouse could contest such a claim by asserting that the investment was a gift, based on the fact that the property is registered in the name of that spouse. In cases where the parties are unable to agree, the court evaluates the evidence presented before reaching a verdict. As such, it is imperative to keep evidence of and officially document any contributions made in purchasing the property to guarantee the ownership rights of the spouse who is not registered on the title deed.
Despite the Law stressing a need for financial independence and a fair dissolution of jointly owned property, the Law takes into consideration the welfare of children in cases of marital breakdowns. This is highlighted in the final factor to consider – the family home.
The concept of the custodian house is outlined in Article 148 of the Law. Essentially, the mother of the child, in her capacity as a custodian, retains the right to reside in the matrimonial house along with the child/children even after the divorce. Should the house not be registered under the father's name, he, as the child’s guardian, is obligated to procure alternative housing or provide a housing allowance. This provision recognizes the importance of maintaining stability and continuity for children amidst familial transitions, ensuring their well-being remains paramount.
Legal issues relating to family matters must always be handled with care and consideration, given their sensitive nature. It is usual for spouses to invest jointly or separately in assets over the duration of the marriage. Therefore it is important that upon acquisition of property, the ownership is properly documented and registered at the appropriate government authority via the title deed. Legal professionals play a pivotal role in safeguarding property rights and promoting equitable resolutions in matrimonial proceedings. The interplay between family and real estate law practice in the UAE underscores the multifaceted nature of legal representation in matrimonial disputes. By navigating the provisions of the Law and considering the three factors discussed above, practitioners can adeptly address the complexities of property ownership, custodial arrangements, and asset distribution within the framework of familial relations and their assets.
Al Tamimi and Company’s lawyers have deep experience in both family and real estate law. Please contact us for any further information or queries.
For further information,please contact Ali Zakaria and Raneem Salha.
Published in June - July 2024
