Good news for expats living in the UAE – Landmark changes in personal status law.

November 10, 2021by Admin0
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Introduction

President His Highness Sheikh Khalifa bin Zayed Al Nahyan, in his capacity as Ruler of the Emirate of Abu Dhabi, issued Law on Personal Status for Non-Muslims in Emirate of Abu Dhabi (“Law”) to regulate and provide a flexible and advanced judicial mechanism for the determination of personal status disputes for non-Muslims.

According to the Abu Dhabi Judicial Department (“ADJD”) Under-Secretary, the new Law applies civil principles to regulate family problems, and the Judicial Department has established the first court dedicated to non-Muslim family matters. To make judicial proceedings easier to understand for foreigners and promote judicial transparency, the new court’s procedures will be multilingual in Arabic and English.

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SALIENT FEATURES OF THE LAW

The new law consists of 20 articles divided into five chapters covering civil marriage, divorce, joint custody of children, and inheritance.

Chapter one of the law governs foreigners’ marriage procedures in court by introducing the notion of civil marriage based on both the husband and wife’s will.

Chapter two defines non-Muslim divorce procedures, spouses’ post-divorce rights, and the judge’s discretion in determining the wife’s financial rights based on several criteria, including the number of marriage years, the wife’s age, the economic standing of both spouses, and other considerations that the judge considers in determining the wife’s financial rights.

Chapter three introduces a novel concept in post-divorce child custody, namely, sharing custody equally between the father and mother, also known as “Joint or Shared Custody,” in the western countries, to preserve the family’s cohesion after divorce and the children’s psychological health.

Chapter four discusses inheritance difficulties, non-Muslim will registration, and a foreigner’s right to write a will devolving all of his or her possessions to whomever he/she desires.

DETAILED DISCUSSION ON THE PROVISIONS OF THE LAW

Chapter 1 – Civil marriage

Conditions for constituting a valid civil marriage: Article 4 of the Law lists the following 5 conditions:

  1. Both parties entering into the marriage must have attained 18 years of age;
  2. Free consent of the parties must be expressly declared before the authentication Judge;
  3. Both parties must sign the Disclosure form;
  4. Marriage is prohibited with (a) siblings, (b) children, (c) grandchildren, and (d) uncles;
  5. Any other condition as issued by the chairman from time to time.

Procedure for Civil Marriage contract:  Article 5 of the law provides that the marriage of a foreigner shall be solemnized when both the parties to the marriage file an application using a form prepared for this purpose before the authentication judge. He/she is exempted from filing premarital medical examinations. The parties shall agree on the terms of the contract and the same shall prevail both during the subsistence of marriage as well as post-divorce.

Contents of marriage contract form are:

  1. Disclosure related to any prior marriages;
  2. Date of divorce of such marriages; and
  3. A declaration that no marriage is still effective

Once the conditions of the civil marriage contract are verified and the procedure under Article 5 is followed, the authentication judge shall ratify the marriage, and the same is entered into the register while living in the UAE.

Chapter 2 – No-Fault Divorce

Article 6 of the Law identifies the concept of Unilateral divorce in which a divorce can be granted if either of the spouses communicates to the court a desire to bring an end to the marriage. There is no requirement for the proof of justification of the application, demonstration of harm, or the fault of the other party.

Divorce Proceedings:  As per Article 7, either party may apply for a divorce by using the specified form and there is no requirement to prove any harm. Once the other party is notified, divorce shall become final by the decision of the court. The Law excludes the requirement of referring the case for family guidance and the divorce becomes effective in the first session itself on the filing of the case in the court.

Alimony resulting from Divorce: Article 8 of the Law allows the wife to claim alimony from her ex-husband by filing a post-divorce application form before the court. Where a marriage contract is silent about the criteria relating to alimony, its acceptance by wife and terms of the application shall be subject to the nine factors which are mentioned in Annexure I for ease of reference. This Article also provides an option for amending the alimony amount either on variation in circumstances or every year.

Chapter 3 – Custody of Child Post-divorce

To preserve the mental health of the child and reduce the negative effects of divorce, Article 9 emphasizes that both parents have joint and equal rights for the custody of the child even post-divorce. However, a change to this rule happens when:

  1. Either of the spouses waives this right of equal custody or
  2. Applies to court in writing:
  3. For removing the other spouse from joint custody and
  4. terminating his/her right of custody for any reason acceptable by the court.

Chapter 4 – Estate and Wills

Distribution of Estate: Article 11 of the Law allows a foreigner to issue a Will in favor of any person of his/her choice. If a spouse dies intestate, the following rule applies:

  • Half of the estate goes to the other spouse and the rest of the half is equally divided amongst the children irrespective of their gender.
  • Where a demised spouse has no children, then the whole of the estate shall be vested on such spouse’s parents on an equal basis. In case the demised spouse has only one parent, then half of the estate shall be vested on such living parent and the rest half will be vested on the demised spouse’s siblings.
  • In the absence of parents, the estate shall be vested on the demised spouse’s siblings in equal shares irrespective of their gender.

Notwithstanding the above rule, and in the absence of registered Will to the contrary, any heir of a foreigner can request the application of the law applicable to the estate according to the provision of the Civil Code.

Registration of Foreign Wills: Article 13 provides for a special register for the registration of foreigners’ wills and the guidelines for their registration and implementation shall be issued by the chairman.

Chapter 4 – General Provisions

Article 16 of the Law identifies the concept of equality of men and women in personal status matters such as testimony, estate, rights of divorce, and joint custody.

Court for Non-Muslim Personal Status Matters: The Law, under Article 17, provides for the establishment of a court to exclusively deal with personal status matters of non-Muslim foreigners, who either have their place of residence, domicile, or place of business in Abu Dhabi. This court shall be constituted by a single non-Muslim and all forms as well as the procedures of the court shall be bilingual i.e in Arabic and English.

By publishing the first civil legislation controlling non-Muslim family matters following worldwide best practices, the law supports the Emirate’s leadership. It also provides non-Muslims the right to be bound by an internationally recognized law that is known to them in terms of customs, culture, and language, as well as the protection of children’s best interests, particularly in the case of parental separation.

Annexure 1

  1. Length of marriage, such that the alimony amount increases in proportion to the number of years of marriage.
  2. Age of the wife; a younger wife would get lower alimony as compared to an older one.
  3. The economic situation of each spouse as determined by a court-appointed Department expert.
  4. The extent of the husband’s contribution to divorce by neglect, error, or any act resulting in divorce.
  5. Compensation by one spouse to the other for any material or moral harm caused by divorce.
  6. Financial damages sustained by either spouse as a result of unilateral divorce.
  7. Payment by the father (divorced man) of costs and expenses of mother’s custody over children during joint custody, for an interim period not exceeding (2) two years pursuant to the outcomes of the accounting expert report.
  8. The extent of care to children by the wife.
  9. In any event, the wife’s alimony shall terminate when she marries another man.

About ATB Legal

ATB Legal is a full-service legal consultancy in the UAE providing services in dispute resolution (DIFC Courts, ADGM Courts, mainland litigation management and Arbitrations), corporate and commercial matters, IP, business set up and UAE taxation. We also have a personal law department providing advice on marriage, divorce and wills & estate planning for expats. Please feel free to reach out to us at office@atblegal.com for a non-obligatory initial consultation.

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