Women’s rights in Marriage and Divorce based on Sharia Regulations and the UAE Personal Status Law: Part II

30 Oct, 2018

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Family Family Law

Ahmed Elnaggar

Founder, The Jurist, Managing Partner at Elnaggar & Partners, Founder and President at Emirates Legal Network

Taking into account the fact that over 9 million expats decided to move to the UAE and make their base and second home one of the seven Emirates of the UAE, lots of them wonder if foreign marriages are recognized in the UAE. In most of the cases, a marriage contract concluded abroad is valid in the UAE as well. In order to be recognized, the original marriage certificate/ marriage contract (the exact name of the document can vary from one country to another, what is important is that this document has to make full proof that marriage was in fact concluded and is recognized by the country where the marriage took place) must be legalized before Ministry of Foreign Affairs in the country where marriage took place, translated into Arabic by an official translator and then attested by Ministry of Justice. However, certain marriages are not recognized in the UAE, even if a valid marriage certificate was issued by the country in which the marriage took place, this being the case for: marriage between partners of the same sex, marriage between a Muslim woman and a non- Muslim man, marriage of a Muslim man with a woman of another religion other than Christian or Jewish.

Civil partnerships are recognized as long as they are entered into and attested abroad, provided that they are not one of the above mentioned unrecognized marriages.

Even though marriages are meant to be forever, people do turnaround from oaths taken or life just happens and divorce comes in the picture. According to Article no. 99, Personal Status Law, divorce is the dissolution of the marriage contract in the legally prescribed form. A specific characteristics of the divorces in the UAE is that they can occur verbally or in writing. Even so, in case of a verbal divorce, the court must pass it by judgement, through witnesses or by oath.

As per Article no. 100, Personal Status Law, only the husband can file for a divorce or his empowered representative. The wife can ask for divorce only if she was granted the authority to do so, by inserting such a clause in the marriage contract.

Despite this, the law provides another solution for the wife to obtain her divorce. In Arabic is called Khula and its regulated by Article no. 110, Personal Status Law. Khula is a mutual agreement between the spouses to terminate their marriage. In order to have full effect of such an agreement, the wife has to pay a compensation to her husband.

The grounds for divorce are listed between Article no. 110 to Article no. 135, Personal Status Law, as follows: divorce for defects (such as insanity, leprosy, impotence, vaginal occlusion etc.), divorce for failure to pay the prompt dowry, divorce for prejudice and dissension, divorce for non-maintenance, divorce for absence and loss, divorce for detention and divorce for Ila’a [1] and Zihar [2].

Even though in the English version of the Personal Status Law, the word “separation” it is used instead of the word “divorce”, separation known as in other jurisdictions does not exist in the UAE. Separation by court order as mention in the Personal Status Law, is consider actually a divorce in the UAE.

The above list of grounds for divorce is not exhaustive. They are rather limited for a woman applying for a divorce. There is no list of grounds for a man to apply for divorce. A Muslim man does not need a ground to divorce his wife, while a non-Muslim man must have a ground for divorce before the UAE courts.

Non-Muslims can also request for the law of their home country to be applied before the UAE courts.

This is permissible under Article no.1, Personal Status Law. However, whenever the law of the parties' home country fails to cover an aspect of the divorce, the courts hold discretion to apply UAE law. A foreign law will not be applied in the following cases: it is contrary to public order, morals or Islamic Sharia (Article 27, Civil Procedure Law), its effect cannot be determined (Article 28, Civil Procedure Law), its application is requested by a party who has dual nationality or whose nationality is unknown. (Article 24, Civil Procedure Law).

Upon termination of marriage the waiting period starts, which is one of the main effects of divorce, along with the custody of the child/children and the sponsorship regarding the divorced wife.

The waiting period or Idda in Arabic represents the compulsory waiting period that the wife spends without being allowed to marry another man, following a divorce (when she has to wait 3 months) or in case of the husband’s death (when she has to wait for 4 month and 10 days). All these procedures might seem strange, but the reason behind it makes it perfectly understandable, because its purpose is to ensure that the father of any offspring produced after the cessation of marriage would be known. With nowadays technologies the child’s affiliation can be probated in many other ways as well, but Islam teachings were meant to help people from hundreds of years ago, when such methods where not known to human kind and establishing the child’s affiliation upon termination of marriage was impossible.

The importance of Idda is reflected by its direct link to the alimony to which the wife is entitled. In accordance with the provisions stated in Personal Status Law, alimony is due from the husband to the wife in the following cases: when he denies having marital relations with her, when he abstains from supporting her or when she is in the waiting period. A woman waiting a mourning Idda is not allowed to receive alimony, but only to live in the conjugal residence.

In the UAE, once the waiting period is over, the husband does not owe any other financial support to his ex-wife. There are no provisions providing for sharing of assets, wealth or income on divorce which is the same case upon marriage. Generally, each of the spouses will keep the assets and property held in their respective names. The court will divide assets such as bank accounts and shares that are in joint names equally or according to the percentages, unless there was evidence to the contrary in accordance with general civil laws.

[1] Ila'a is when the husband swears not to have sexual intercourse with his wife for four month or more unless he goes back on his oath before the lapse of the four months; divorce in this case will be irrevocable

[2] Zihar is when a man says to his wife “I consider your body is as forbidden to me – sexually – as if you are a mother or a sister and so on. This is considered as another kind of “swear” that he will not have sexual intercourse with his wife.