Interview with Alexandra Tribe on Dubai Eye Radio

Alexandra Tribe provides advice on Children Law in the United Arab Emirates to Dubai Eye Radio 103.8. 

Listen here:

 

http://dubaieye1038.com/page/Eye_on_the_Emirates_03.06.2012/26201?feed=8

Resolving Family Matters without hostility

If a separation or divorce is inevitable, keeping the process non-confrontational is likely to ease the transition and lead to longer lasting solutions. In fact, very few couples need to involve the court and there are other options such as Mediation, Collaborative law and Family Arbitration that may make the process of separation or divorce less difficult.

Mediation is not a form of relationship counseling or intended to help a couple get back together but rather a way to help couples who are separating decide how to end their relationship without increasing levels of hostility. In the mediation process, you and your partner along with a trained and neutral mediator will discuss important matters in relation to money, children and other consequences of the separation. The goal is to reach a fair solution tailored to your own circumstances.

Collaborative Law lets you talk through the issues you need to solve your partner, each having a specially trained lawyer by your side. It is an attempt to try and resolve issues without going to court in which everyone signs an agreement to underline their commitment to this cause. Your collaborative lawyer will not be able to represent you in court, should negotiations break down. This assures that all parties involved will try their best to reach a solution out of court.

Family Arbitration is a new method of alternative dispute resolution. Arbitration is a means by which you and your spouse can resolve your finances and property issues without the expense of court proceedings. Both you and your partner must agree to use arbitration but once an arbitrator has been appointed, you will not be able to back out without your partner’s agreement. The arbitrator will give a binding ruling, known as an “award” after reviewing all the evidence and facts and taking into account your views on what you think should happen.

Our lawyers at Expatriate Law (www.expatriatelaw.com) would be happy to discuss and assist with any of the above methods of alternative dispute resolution. Our lawyers are committed to assisting you resolve your family law matters without delay, hostility or unnecessary cost.

This article has been prepared in support of Family Dispute Resolution Week. Please refer to www.resolution.org.uk for further details or contact our Resolution Accredited solicitor at Alexandra@expatriatelaw.com.

Custody and Guardianship rights in the UAE

 


The applicable law in relation to children matters in the United Arab Emirates is the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law). The fundamental basis of these laws, is that decisions made in respect of a child should be based on what is in the child’s best interests. 

An interesting facet of custody laws in the UAE is the different roles assigned to mothers and fathers, being the ‘custodian’ or ‘guardian’. A guardian of a child financially maintains the child, makes important decisions about the child’s education and upbringing, and generally takes care of the child’s affairs.[1] The custodian, on the other hand, is concerned with the child’s day to day life. The custodian has actual, physical custody of the child on a day to day basis, and must raise and take care of the child.[2] It is possible for one parent to play both roles. Most often the mother is awarded custody of children up to a certain age, whereas the father is always considered the guardian. However, the Court has discretion to make orders that are in the child’s best interests. 

Under the laws of the UAE, custody would be withdrawn from the mother is she is deemed ‘unfit’ to be the main carer of the child. To be deemed as a fit custodian, the mother should fulfill a list obligations, including being of sound mind, honest, mature, capable of raising a child, free of an infectious disease, and must not have been sentenced to a serious crime.[3] If an allegation is made by the father that the mother is an ‘unfit’ custodian, the Court will undertake an extensive investigation in to the allegations using statements, witness evidence or the instruction of an independent expert, who may be asked for example to report on the mother’s mental health. The decision as to whether a mother is an ‘unfit’ custodian is not one that is taken lightly by the Court. Notwithstanding the allegations made or evidence provided, the Court will make a decision based on what is fundamentally in the best interests of the child involved.  Certain laws even specify that a custodian must be of the same religion as the child[4]; nevertheless, courts must not adhere to that condition if the interests of a child are best served with a custodian of a different religion.[5]       

The statutory provisions provide clear guidance on the mother’s custody rights. Article 156 of the Federal Law No. 28 of the year 2005 (UAE Personal Status Law) states that the custody of a child should go to the mother, until 11 years of age for a boy and 13 years of age for a girl. In that same clause, the law sets out that this circumstance can change if the court determines something else is best for the child.[6] A recent case concerning child custody reached the Supreme Court of Abu Dhabi.  This case involved a young girl of 13 years, who lived with her mother, the custodian, and was due  to be returned to the guardian, her father, in accordance with Article 156. After months of trials, hearings, and appeals, the Supreme Court of Abu Dhabi did not grant the father custody of his daughter. Though this goes against Article 156, the court found it would be in the best interests of the young girl to stay with her mother until she is married.[7] This case exemplifies the Court’s discretion to make orders that best meet the needs of the child.

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[1] Article 148 of the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law).

[2] Article 142 of the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law).

[3] Article 143 of the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law).

[4] Article 144 of the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law).

[5] Article 145 of the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law).

[6] Article 156 of the Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law).

[7] Dajani, Haneen. "Girls 'Should Stay with Mothers Until Marriage'" The National. Abu Dhabi Media, 18 May 2012. Web. 06 June 2012. <http://www.thenational.ae/news/uae-news/courts/girls-should-stay-with-mothers-until-marriage>.

‘istilhaq’ – the legal recognition of a newborn child

In these blogs, I will regularly refer to Articles from the Federal law 28 of 2005 of Personal Affairs; this is the main UAE statute covering family law issues. For short, I will refer to this statute as the ‘PSL’.

On the birth of a child in Dubai, in order for a birth certificate to be produced, the Ministry of Health would need to confirm the relationship between the child and the father. Under Article 89 of the PSL, the relationship between a father and his child may be legally recognised by the following means:

·         Proving  a marriage between the father and birth mother

·         By the father confessing to the Court that he is the true father of the child

·         By other evidence

·         By scientific means

It is important that a child is recognised as being legitimate (and in this context I mean legitimate to be a child born with legally identified parents, not necessarily just born within wedlock). An illegitimate child would not be entitled to a birth certificate within the UAE, could not obtain a passport, or could not claim inherited assets in the future. In addition, a mother could not claim maintenance for an illegitimate child.

In order for marriage to prove the filial relationship between father and child, under Article 90 of the PSL, the child must have been born sufficient time after the marriage of the mother and father. The time period that must elapse after the marriage is the minimum pregnancy period, which under Article 91 PSL is defined as 180 days. If the child is born less than 180 days after the marriage a criminal offence may have been committed by the parents, by having sexual relations outside marriage.

Following the birth of a child in Dubai, the Ministry of Health would issue a birth certificate. The parents would first need to lodge their marriage certificate so that it can be verified that the mother and father were married for longer than the minimum pregnancy period before the child was born.  A medical committee has been formed in Dubai specifically to rule on circumstances in which the pregnancy period is in question. Under Article 91 PSL, the medical committee can decide on a lesser minimum pregnancy period where appropriate.

Our firm was recently instructed on a case involving a couple living as expatriates in Dubai. In this case the parties had married in their home country in a traditional marriage celebration. However  the marriage certificate had been produced and dated 8 months after the marriage; this was customary in their country. On the subsequent birth of their child in Dubai, difficulties arose during the attempted registration of the birth since the Ministry of Health determined that the minimum pregnancy period had not been met. The parties therefore applied to the Court for a declaration that their child was legitimate. 

In this case, the father provided a statutory declaration confirming the true date on which their marriage took place, and explaining the circumstances in which the marriage certificate was produced at a later date. The declarations were legalised by the Ministry of Foreign affairs and UAE embassy in their home country, and notarised here and translated in to Arabic. The Court accepted the evidence of the father and the Judge determined that the child was legitimate.

In another recent case, a Philippine couple had been granted a licence to marry in Dubai by the Philippine consulate and this was produced more than 180 days before their baby was born. However their actual marriage took place less than 180 days before the child was born, and this caused problems for them at the registration of the birth. The Judge determined that more than 180 days existed between the production of the marriage licence and the birth of the child, and for the moral protection and safety of the child, he should be made legitimate. 

A number of similar cases have been carried out by the UAE courts. Although the UAE does not have a system of precedents, the Supreme Court of the UAE publicises some cases in order to give practical recommendations for lawyers in the region. The underlying principal arising from these judgements is that the Court will attempt wherever possible to ensure that a child is pronounced as being legitimate, as this is clearly in the child’s best interests.

These principles were considered in a 2003 Supreme Court Judgement also involving an expatriate couple.  In order to legally confirm that he was the father of a child so that a birth certificate could be produced, the father made a confession to the court to confirm that he was the father. The Court accepted that the confession met the provision of Article 89 PSL and therefore saw no need to investigate whether the parties were married as the filial relationship had already been proved. This case demonstrates the Court’s desire to take a welfare based approach to the resolution of these issues, within the ambit of the law.