‘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.