By Jeremy D. Morley
Abu Dhabi's non-Muslim Personal Status Law (Abu Dhabi Law No 14/2021) allows non-Muslims to obtain a divorce in the Emirate by means of a civil procedure in a new court, the Abu Dhabi Civil Family Court, under a secular law that is separate from that which applies to UAE Muslim families.
Abu Dhabi Executive Regulation No 8 of 2022 provides the regulations pursuant to which the non-Muslim Personal Status Law applies.
The Civil Family Court has jurisdiction as to civil family matters that concern:
- Non-Muslim citizens of the UAE.
- Foreigners who are nationals of a country that does not apply the provisions of Islamic law mainly in matters of personal status. If the foreigner has multiple nationalities, the relevant nationality is the one that the person has used in the UAE.
- Marriages that were conducted in a country that does not apply the provisions of Islamic law primarily in matters of personal status.
- Marriages that were concluded in accordance with the provisions of civil marriage.
If the Civil Family Court has jurisdiction, either spouse may secure a divorce on a no-fault basis. The first hearing is scheduled at least 30 days from the date of filing the application, and a divorce may then be granted forthwith.
Article 16 of Regulation 8 provides that,
“At the discretion of the court, the judge may compel either spouse to pay a lump sum to compensate the other party after the divorce has occurred, taking into account the following calculation criteria:
- The total years of marriage and the age of the spouses, so that the amount of compensation increases with the increase in the number of years of marriage.
- The extent to which the husband or wife contributed to the failure of the marital relationship through neglect, fault, or the commission of any act that led to divorce, such as infidelity or abandonment.
- What the husband/wife has suffered in terms of material or moral damage, and what she missed of previous or subsequent profit, such as the forfeiture of the divorced woman's right to her husband's inheritance or her sitting at home because of marriage.
- The economic, financial and social status of each spouse according to an accounting expert report.
- Education level and university degrees.
- The extent to which the wife sacrifices her work and future career to raise children.
- In the event that the husband stipulates that the wife not work.
- The standard of living to which the wife and children were accustomed during marriage.
- The extent of the wife's contribution to the husband's wealth.
- The wife's health conditions.
- The wife's functional status and her ability to work .
- The physical condition of the spouses at the time of the divorce.
- The wife's wealth and available sources of income according to an accounting expert report.
- The number of children, their ages, and the extent to which they need care.
- The difference in income between spouses and the financial dependence of one of them on the other.”
Once a divorce is granted, the Court may award temporary support to the wife.
The Court may also issue a final support (maintenance) order in favor of a wife, after evaluating the same factors that should be evaluated when considering a lump-sum award.
Unless the court orders otherwise, the father is obligated to pay housing support in kind or cash to his ex-wife for the duration of the joint custody of the children. It should include basic utility bills such as electricity, water, internet, gas, and air conditioning. The new dwelling should be commensurate with the standard of living that the children were accustomed to before the divorce. The court should also consider the distance of the new dwelling from their old dwelling. The court may exempt the father, in whole or in part, from paying the housing support if the divorced mother has financial solvency that allows her to rent or own suitable housing that meets the needs of the children. The assessment of financial solvency is subject to the discretion of the judge, with reference to the report of accounting expert.
The court may assign the task of evaluating the financial status of the spouses to an English-proficient accounting expert to assess the total financial value to which the wife or husband is entitled after the divorce.
The court and the expert may be guided by the following criteria for estimating and calculating the financial value due after divorce: -
- Percentage of monthly income: a cash percentage of no less than (25%) of the husband's last monthly income (according to the salary certificate or the last account statement, whichever is greater) x number of years of marriage.
- Percentage of the husband's property and wealth: a percentage (in kind or cash) of the market value or purchase value - whichever is greater - of the husband's property and wealth, including real estate and financial investments such as shares and bonds, or interest in limited liability companies or private joint stock and movables owned or registered in the husband's name such as valuables and means of transportation of all kinds.
- The joint money between the spouses and the extent of their participation in it.
The court has the discretion to decide this amount according to the circumstances of the divorce. It may also increase or decrease this amount and estimate the method of calculating it, paying it, and paying it in instalments according to the results of the accounting expert report on the assessment of the financial situation of the spouses in a way that ensures a decent living for the divorced woman and children without incurring financial costs beyond the father's financial capabilities.
Custody of children is joint unless the parties agree otherwise, until they are 16 years old, but the court may order otherwise.
If the parents do not agree on how to divide the joint custody between them, the court shall determine whether it shall be divided on a weekly, bi-monthly or monthly basis, or in any other way that takes into account the best interests of the child.
Either parent may request the removal of the other party from joint custody, whether legal custody or physical custody or both. After a hearing, the court shall initially decide what it deems necessary and essential in the interest of the child, whether by temporarily suspending joint custody pending a decision on the case, or by assigning a social expert to evaluate the matter.
The court shall order that a parent shall forfeit custody, whether temporarily or permanently, if any of the following cases are established:
- The child is at risk of being exposed to domestic violence or abuse.
- Inadequate living conditions provided by the parent.
- The child needs particular health care that the parent cannot provide.
- Behavioral, psychological or mental problems that the parent suffers from that may
harm the child or expose the child to danger or neglect.
- Lack of time to take care of the child or neglecting the child.
- The child's desire, provided that he reaches the age of 12.
- Abuse of drugs or alcohol or any psychotropic substances.
- Health reasons that impede the parent from carrying out his duties towards caring and attention for the child.
- Parent's remarriage.
- Any other reasons the court deems appropriate.
Upon cancelling joint custody, the court has the discretion to apply what it deems appropriate from the rules of justice and fairness or the best international practices of comparative legal systems with regard to custody and visitation with the best interests of the child taking precedence. The court shall expeditiously decide on the request for intervention to settle the disputed joint custody matter and shall take what it deems appropriate in the best interests of the child, taking into account the stability of the child's academic and sports life after the separation of the parents and not changing the child's as lifestyle as much as possible as a result of divorce.
In the case of joint custody, none of the parents may travel with the child outside the country by a unilateral decision without the written consent of the other party, or a court order authorizing the travel.
Either parent may submit a request to the judge to compel the party applying for travel to provide sufficient guarantees for the child's return to the country again according to the specified date, and the request is subject to the judge's discretion.
Either parent may submit a petition to the court to ban the child from traveling for a temporary period by setting forth specific objections to such travel of the child and an explanation of any danger that requires banning the child from traveling. The application is subject to the discretion of the court.