Although divorce is inevitable between a man and a woman who does not wish to live together, its implication on the children of the divorced couple is generally grievous. Studies have shown that divorce can negatively impact a child’s emotional wellbeing, academic performance, and social development.
The UAE government places significant emphasis on the wellbeing and development of children. Consequently, the government has issued multiple laws to ensure that a divorce has a limited impact on a child. These laws seek to involve both parents in the lives of their children, even after a divorce and also ensure that the change in living situations have a minimal effect on the children’s academics and other areas of development.
UAE family Law
The UAE has enacted a set of family laws governing its Muslim and non-Muslim population. The Federal Decree Law No. 41 of 2024 governs Muslims in the UAE (“Federal Personal Status Law”), the Federal Decree Law No. 41 of 2022 govern non-Muslims in the UAE except in the emirate of Abu Dhabi (“Federal Civil Personal Status Law”) and Abu Dhabi Law No. 14 of 2021 governs non-Muslims in the Emirate of Abu Dhabi (“Abu Dhabi Civil Personal Status Law”).
Parental Responsibilities under the Federal Personal Status Law
The Federal Personal Status Law is based on Sharia principles. Consequently, the law involves concepts of custody and guardianship that imposes distinct roles to parents after a divorce, ensuring that both parents continue to be involved in the affairs of the children, while also guaranteeing that they do not interfere in each other’s roles, thus preventing conflicts over their responsibilities.
After a divorce, the custody of the children is generally granted to the mother of the children. As the custodian, the mother is involved in the day-to-day care and wellbeing of the children, taking decisions on their health, food, clothing etc., necessitating the need for the children to live with the mother. The father on the other hand is granted guardianship over the children. As the guardian, the father is responsible for the overall decision of the children. The father also given the financial responsibility over his children, and must provide for the children’s basic needs, such as food, clothing, shelter, health, education, transportation and certain other expenses as required by each culture. Educational guardianship is granted to the mother under Article 112.
As per Article 123 of the Federal Personal Status Law, a mother is granted custody over her children until the children attain the age of 18. However, as per Article 122, a child may choose to live with the other parent after he/she turns 15, provided that the court decides that such a decision taken by the child is in the child’s best interests.
Ensuring the presence of the father in the lives of the children
Although the law grants the mother custody over the children, she cannot hinder the participation of the father in the lives of the children. The mother cannot stop the father from visiting the children and spending time with them. The Federal Personal Status Law under Article 121 lays down a set of provisions that govern visitation rights. This Article states that if a child is in the custody of one parent, the other parent has the right to visit the child, and even take them for overnight stays according to what is mutually agreed between the parents. If the parents are unable to come to a decision regarding the visitation schedule and its conditions, the court will issue an order, based on the best interests of the children involved.
The law also lists down instances when the mother can lose her right of custodianship over the children. According to Articles 113 and 115 of the Federal Personal Status Law, a mother is required to fulfil certain conditions to be granted custody of the children, such as having the ability to raise children, being free from contagious illnesses, not being convicted of a crime involving turpitude etc. Even after being granted custody, a mother can lose this right if she acts against the interests of her children.
Joint Parenting under the Civil Status Law
As explained in the beginning of this article, the Federal Personal Status Law governs the family matters of Muslims, as per Sharia principles. However, the non-Muslims in the UAE are governed by the Federal Civil Personal Status Law and the Abu Dhabi Civil Personal Status Law. The two laws are distinct from the Federal Personal Status Law in terms of marriage, divorce, maintenance and child custody. Unlike the Federal Personal Status Law, the civil personal status laws provide for joint custody of children after the divorce of the parents.
Joint custody of children refers to the right of the parents to exercise their roles in raising and caring for the children upon separation, on equal and joint basis, and the children’s right of not being deprived of any of their parents due to a divorce. The civil personal status laws automatically allow for joint custody unless either of the parent is proven to be ineligible for custody, or one of the parents waives their right to custody. Under the Federal Civil Personal Status Law, the parents are granted joint custody over the children until the children attain the age of 18. However, the Abu Dhabi Civil personal Status Law allows joint custody until the age of 16 after which the children are given the right to choose between the two parents.
The law allows both parents to decide the terms of joint custody. However, if the parents are unable to reach a mutual decision, the court will order a periodic exchange of the children, either weekly, monthly or in any other form. The court will also issue orders regarding the distribution of leaves and public holidays. All decisions regarding the children will be taken as per their best interests. Cabinet Decision No. 122/2023 (regulating the Federal Civil Personal Status Law) and Abu Dhabi Decision No. 8/2022 (regulating the Abu Dhabi Civil Personal Status Law) provides extensive regulations in which joint custody can be enforced or appealed.
Conclusion:
The family law in UAE under both the Muslim personal status Law and the civil personal status laws provide for extensive laws and regulations to ensure the continued participation of both parents in the lives of their children, even after a divorce. While the Federal Personal Status Law promotes co-parenting by clearly bifurcating the responsibilities of the parents over their children, the civil personal status laws grant joint custody of children to the divorced parents, and allow the parents to divide their responsibilities in a manner suitable to them. In case parents are unable to reach a decision, the law allows the court to issue a decision after considering the best interests of the children involved. If you are involved in child custody cases, ensure that you consult with the best Dubai family lawyers to protect your rights as a parent.
