It's something none of us wants to think about. But sorting out a Will and guardianship documentation is just one of those things that as parents we have to do here in the UAE, especially if we are living far away from family in other countries. There are some laws and customs unique to the region that may surprise those of us from other nations, but that can be prepared for with the right documentation.
We got the lowdown on this tricky topic from Cynthia Trench of Cynthia Trench and associates and the non-profit child-safety expert Kids Initiative. Here are five things that every expat parent should know about Wills and Guardianship in Dubai...
1) A mother doesn't automatically have guardianship of her children in the UAE
"Guardianship is provided for under the UAE Federal Personal Status Law, which follows Shari’ah," says Cynthia Trench. "Shari’ah law states that the father is the always the main guardian. This means that he has full legal control and this is a very different situation to countries which apply ‘Common Law’. In the UAE the mother may be a ‘Custodian’ until a son reaches 11 and a daughter reaches 13, but this does not grant her legal rights to control any monies or assets in the children’s names. Being custodian still means that she needs to obtain consent from the guardian before travelling with the children, but this only arises if there is a dispute with regard to her custodianship rights."
In the event of the father passing away but the mother surviving, Shari’ah Law states that Guardianship of the child will then be passed to the paternal grandfather. This means that, as a mother you would not have the legal right to make key decisions for your child unless you have the father-in-law’s approval. Should both parents die and no Will be prepared, the Shari’ah Law principles apply by default and dictate who is appointed as guardian.
2) You can set up temporary guardianship documentation for free
Temporary guardianship documentation is an agreement either legal or civil which allows someone to look after your children if you are unable to, in the interim period, until permanent guardians can come in and take over. There are three types of guardianship documentation:
- A civil guardianship agreement: This is not a legal document, but is the minimum form of documentation that you can put in place to protect your family if the worst should happen. Non-profit child-safety experts KIDS Initiative offer this document free of charge, with the only cost to you being getting it translated into Arabic at your local typing centre.
- A legalised document through the Dubai courts system: According to Kids Initiative, the process of making the temporary guardianship document a legal agreement costs around Dh2,300 to appoint one set of guardians through the Dubai courts system, plus the costs of drafting and translating this document Dh2,200 and the cost of Dh100 to present it to the Dubai courts. Both father and mother of the children in question, as well as the guardians stated in the document need to be present at the Dubai courts with their original passports and emirates IDs.
- A legalised document through the DIFC courts system: The recent developments in the DIFC mean that the process of appointing guardians has become easier for non-Muslim expats in Dubai. According to Kids Initiative, the process of appointing temporary guardians in a stand-alone document costs around Dh7,000. One reason you may prefer to go through the DIFC court system as opposed to the Dubai court systems is because the DIFC has a system of precedent cases in place, which means the outcome of your case will be informed by the outcome of previous cases, and is likely to be very similar if not the same. The Dubai court system does not currently have this in place, according to Kids Initiative, meaning the verdict of any situation is dependent on the judge you have on the day, regardless of similarities between circumstances.
"Guardianship documentation must be physically presented if an emergency were to occur"
Kids Initiative points out that the most important part of the guardianship process is how you distribute this document once completed, regardless of which process you choose. The idea is for the document to be physically presented by the guardians nominated if an emergency situation were to occur. Therefore it’s important to give physical copies to both guardians nominated, a copy to the nursery/school your child/children attend and also to the HR of the company that sponsors your visa as they would be the first ones to find out if something were to happen.
3) If you've made a Will in your own country, it won't apply in the UAE
Although you might think you're covered by having a Will in your own country, Cynthia Trench points out that presently the judges of the Personal Status Courts in all the Emirates apply Shari’ah Law and ignore any foreign Wills.
4) You also need to be careful with ‘Shari’ah Compliant' Wills
Cynthia Trench warns that you should be careful with firms stating that they are giving you a ‘Shari’ah Compliant Will’. "Wills just translated into Arabic and notarised do not make them Shari’ah Compliant," says Trench. "Ultimately it is highly likely that Shari’ah law will be applied, regardless of what is stated in your Will because such intentions would go against the precepts of Shari’ah or indeed the provisions of the Personal Status Law."
5) A DIFC Will allows non-muslims to divide their assets according to common law
"The DIFC Will and Probate (WPR) issued the WPR laws on 1 May 2015 and allows non-Muslims in Dubai and Ras Al Khaimah (which signed a bi-lateral MOU with DIFC) to pass on their assets to whomever they wish and appoint guardians for their children (under the age of 21)," says Trench. "This is a first for the MENA region and offers clarity of law, rules and processes, not forgetting peace of mind. Ultimately, a DIFC Will ensures that your wishes regarding Guardianship and Inheritance will be fully and legally respected."
Previously, all Wills were seen as an appeal against Shari'ah, and thus had to go to the court of appeals, which costs Dh75,000 to implement. The recent developments with the DIFC allows non-muslims to lodge a Will that isn't seen as bypassing Shari'ah, and to divide their assets according to common law (60% British law and 30% American law). Lizzie Dickson of the Kids Initiative says, "The cost of lodging a Will through the DIFC court systems is Dh13,000 for a single will and Dh20,000 for a mirror will [husband and wife].”