When a couple decides to divorce, various issues arise which may be further complicated when you are residing in a foreign country where may not be aware of the local laws and procedures.
The laws governing divorce in the UAE are very different from most other non-Sharia law jurisdictions. The problems are magnified if there are children and assets involved.
Here, solicitor Nida Chaudhry from TWS Legal Consultants, looks at some frequently asked questions by people living in Dubai who are thinking of getting divorced.
Read more: 'What's going wrong with UAE marriages?'
Where can I divorce and which law prevails?
Expats usually have a choice of jurisdiction as to divorce proceedings through their domicile, residence or nationality.
From the perspective of jurisdiction, there are three main rules:
1) Foreign nationals living in the UAE can file for divorce in the UAE, on the basis that they are residing here
2) You may be able to divorce in your home country, depending on your home country’s residency rules
3) You may be able to apply in the UAE under the application of your home country’s laws
When the parties have different nationalities, this can further complicate matters, as each of them may advocate for their respective home countries law to apply.
In situations where the home country laws do not fully cover certain aspects of the divorce procedure for example, child maintenance, the Dubai court would continue to hold the jurisdiction to apply UAE law for that particular aspect.
When choosing jurisdiction it is very important to seek legal advice from a licensed family lawyer from the outset, as the jurisdiction in which you decide to divorce in can have a huge impact on your financial settlement, maintenance, and the custody and guardianship of children going forward.
How common is divorce between expats in the UAE?
Quite common. Marriages can sometimes fall apart due to unrealistic expectations, behavioral issues, a lack of understanding and commitment and a host of other inherent factors. External factors also play a role. There is a lot of temptation for young couples at work or other places and it is easy for them to make new friends. The proliferation of social media like Instagram, Tinder, Facebook and WhatsApp gives them ready access to their contacts; social and night-life is diverse and active; and the moral compass is off for most people as they are away from their families.
How do I initiate proceedings?
Once proper legal advice is sought, either party can open a file to divorce at the court stipulating their decision to dissolve the marriage.
This is followed by a meeting with a conciliator at the court to ascertain if an amicable agreement can be reached or not between the parties. This is mandatory for divorce proceedings in the UAE.
My spouse and I have agreed to get a divorce but we do not want to go through a time consuming court process. Is there a simpler way to get a divorce here in Dubai?
Yes, one of the avenues through which couples may obtain a divorce is through mutual consent and agreement. This means that the divorce and all of the terms relating to the divorce, i.e. payments, child custody etc. are agreed to. A mutual consent divorce begins with the preparation of a settlement agreement, which a lawyer may assist you with. All couples must first meet with the reconciliation counsellor in advance of proceeding with the divorce, a process that is in line with the public policy emphasis of a respect for marriage and familial units. The settlement agreement is filed at the courts, as part of the divorce, thus governing the terms of the divorce.
To what extent are the reasons for a marriage breakdown considered?
Typically, either party initiating a divorce should show a reason for asking for the divorce, as is the case in most common law countries, unless the couple has been living apart for a number of years, in which case this would represent a reason in and of itself. This is the same as the UK law. However, meeting the threshold of showing a reason is actually slightly easier here than in many other countries, and usually a court will eventually grant the divorce, while also ruling on all other relevant matters, i.e children, payments, division of assets etc. This applies to both wives and husbands initiating the divorce. As a matter of simplicity, we always encourage our clients to come to a settlement, such that neither party needs to provide a “reason” for their decision to divorce. If the couple enters into an amicable arrangement, then the reason will become irrelevant.
Who will get custody of my children?
It is important to note that in the UAE parents do not share equal parental responsibility like they would, for example, in England.
However, the court here will always act in the best interests of the child. In this jurisdiction following a divorce, the mother will become the ‘custodian’ and the father is the ‘guardian’.
Usually the custody of the children remains with the mother until the children reach the age of puberty. At that point the father has a right to make an application for custody to be transferred to him. If the transfer of custody to the father is disputed by the mother, then the court will make a decision based on the facts of the individual case and the best interests of the children.
As custodian the mother is responsible for the day-to-day care of the children. The father, as guardian, is responsible for the child’s education, medical treatment, accommodation and guiding them in terms of morals and religion.
Read more: 'How parenthood makes or breaks expat marriages'
As a Guardian can I visit my children?
A guardian does have visitation rights to spend time with his children, and the Judge usually determines this to be one or two days a week, unless the parties agree otherwise in an amicable agreement.
Therefore the mother as custodian of the children cannot usually permanently move to another country in order to deliberately prevent such contact by the father, unless the father consents to the move.
Am I able to leave the country with my children?
Leaving and removing a child without the consent of the other party amounts to child abduction.
This is a very sensitive situation, particularly when a mother wishes to flee this jurisdiction to avoid the application of the local UAE law. Even your home country is likely to return abducted children to their country of residence.
If either parent has concerns that their permission will not be sought for travel they can obtain a ‘travel ban’ preventing the child from any travel out of the UAE. In such situations it is prudent to speak to a lawyer about the arrangements and safeguards that can be put in place if you feel there is a potential risk of child abduction arising.
As a wife getting divorced in Dubai, what are my rights?
Under UAE Law, the male is 100 per cent responsible for the financial support of his children. As this would naturally include accommodation, which is a significant financial obligation, he would by default also be paying for the housing of his ex-wife, since the mother has custody. Many ex-wives with children find that this aspect provides a tremendous financial relief.
Conversely, this means that there is a great deal of weight on fathers going through a divorce because they are 100 per cent responsible for support as soon as there are children involved. This creates both a financial and mental battle for the father, especially for those who are not familiar with the cultural intricacies of Sharia law in a family breakdown.
On the other hand, there is no allocation for ongoing spousal support compensation, and this is often challenging, especially for wives with no children, who essentially get very little financial support. The financial support for the wife herself is limited to what is known as iddah period, which is a three-month period during which the wife cannot get remarried. During this period, the wife would get financial compensation from her husband, being a monthly lump sum amount. In addition, if a wife initiates a divorce, the court may rule that she has given up her right to the three-month iddah support.
Each client’s situation is unique in some way – we work with a range of clients with varying circumstances. This diversified experience has allowed us to develop in depth knowledge of the various concerns and uncertainties that expats may have when it comes to getting a divorce while living in Dubai.