Custody vs. guardianship

If you are a parent with children living in the UAE, it is more than likely that you have heard whispers and vague concerns regarding the guardianship of your children. Are they safe? Will they be taken away? Can one parent travel alone with them? What if one of us passes away? What if we both pass away? Below, I breakdown some of the myths about guardianship in the UAE and outline the reality of the legal situation and what you should know as a parent.

Did you know?

  • Custody and Guardianship are different. Custody refers to who the child physically resides with. Guardianship on the other hand deals with parental rights including decisions about the child’s health, education, travel, finances, legal matters, medical and all other major areas of decision making.
  • In the event of the death of the father, the mother becomes the custodian of the children and therefore the children may stay in her physical residence  
  • Under UAE law, the father is the automatic guardian of the children while the mother does not have guardianship rights  
  • The conundrum arises when the father of the children passes away. Who then becomes the guardian? In this case guardianship must pass to a male heir on the father’s side of the family
  • As long as your children reside in Dubai and/or Ras al-Khaimah, you are subject to the Sharia law regardless of your religion or nationality
  • For this reason a mother’s father-in-law or brother-in-law could have greater rights over her children than herself

There are a number of options which the UAE government has put into place for expats in order to allocate guardianship as per your own wishes, i.e. to the mother of the children rather than a male heir. Read about how to set up guardianship documentation in the UAE for free.

Read more All the paperwork you need to have a baby in the UAE

These safeguards vary depending on your situation. However, typically clients opt for the DIFC Will. This option is exclusive to non-Muslims with children residing in the Emirate of Dubai and/or Ras al-Khaimah. The DIFC Will enforces rules based on common law principles and legislation based on English law, which allows testators to nominate guardians of their choice, and to have this Will registered in a government authority.

The Will allows parents to nominate the mother of the children as guardian. In addition, it deals with the added precaution of naming guardians in case both parents pass away – something parents should be doing no matter where in the world you live. One of the most difficult disputes a family can face is to decide where the children should live and with whom if both parents have passed away. This can be a tremendous source of conflict, not only for family members, but for the children themselves. 

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If you are parents, a will can be used to specify who will look after your young children after your deaths. The absence of a Will may goad authorities to intervene in guardianship matters, especially when both parents pass away simultaneously, and there is a possibility that their care may be entrusted to those you may not want it to fall to.

The right legal documents should adequately outline your wishes and when drafted properly override the local laws.

Nida Chaudhry is a solicitor at TWS Legal Consultants who have an established Wills and Guardianship Department. They can assist in advising and guiding clients as to the appropriate legal tools for their protection as well as in providing bespoke documents for each family’s individual needs.