Divorce by Mutual Consent Procedure in the UAE

Written by: LAW

Divorce by Mutual Consent Procedure in the UAE

Getting divorced in the UAE is generally uncomplicated. The Personal Status Court deals with both Emiratis and expatriates who are resident in the UAE. The procedure is quite straightforward and includes counseling, settlement discussions/agreements, and court appearances.

This article will discuss the procedure where the parties have agreed to divorce by mutual consent.

Divorce Procedure

Non-Muslim expatriate residents can file for divorce in their home country (domicile) or apply for divorce in the UAE.

The first and most important step would be to appoint a trusted and experienced family lawyer in UAE, such as HHS Lawyers and Legal Consultants, to assist and provide guidance to you during this trying and complicated process.

The second step would be for either party to approach the Family Guidance Centre of the Personal Status Court of the Emirate in which the divorce is being applied for. A divorce case is registered and a file opened in the names of the parties concerned. The parties must provide the marriage certificate, copies of their passports and Emirates ID cards.

The Parties will be provided with a date for them both to attend a counselling session. Attendance of the counselling session is mandatory for divorces in the UAE and both parties must be present at the session. The purpose of the session is either for the parties to hopefully reconcile or to at least reach resolution in respect of the issues relating to, for example, spousal maintenance, division of assets, child custody etc.

Mutual Consent Procedure in the UAE

It will be within the appointed counsellor’s discretion to determine the number of sessions which the parties will be required to attend. This number can vary between 1 and 6 or even more, should the counsellor be of the opinion that more sessions are necessary.

If the parties are unable to reconcile, the counsellor will proceed to provide them with a referral letter confirming that they are both of sound mind and capable of making the decision to divorce. The letter permits the parties to proceed and must be submitted to the court within 3 months of the date of issue, whereupon the matter will then be set down for final hearing before the Court.

The parties must then present the Court with their evidence in support of the divorce and both parties must prepare a settlement agreement with the agreed outcomes.

If the Court is convinced that the marriage has broken down irretrievably and the relationship between the parties cannot be saved, that the couple will have an orderly separation, and that any children born from marriage will be adequately protected and cared for, it will make the order to grant the divorce.

The Divorce process can take between 2 to 6 months, depending on amicability of the parties and how complicated the case is.

Recent Amendments to Marriage and Divorce Laws

Previously, in accordance with Article 1 of the Federal Law No. 28 of 2005 (the “Personal Status Law”), non-UAE and non-Muslim couples seeking to divorce in the UAE could either have their divorce, maintenance or custody claims concluded in terms of Sharia Law or alternatively, the laws of the couple’s home country. However, if there was a dispute or conflict, the laws of the husband’s country of residence would take precedence in instances where the couple held different nationalities.

However, this has changed with the new amendments made to the Civil Code by Federal Decree Law No. 30 of 2020 Amending Certain Provisions of the Federal Law No. 5 of 1985 Concerning the Civil Code (the “Amendment”).

Pursuant to Article 1 of the Amendment, Article 13 of the Civil Code is accordingly amended to provide that the law of the territory or country where the marriage took place shall be applicable to all personal and financial aspects impacting the marriage, as well as to the divorce or separation of the parties.

In addition to the aforesaid, similarly Article 12 of the Civil Code is amended to provide that in instances where the validity of the marriage is to be determined, the law of the territory or country where the marriage was concluded shall be applied to the matter.

The effect of the Amendment is therefore that the Court would now instead consider the law of the country where the marriage was finalized to decide upon matters having a personal or financial impact on the marriage as well as the divorce or separation of the parties. This would include for example, disputes relating to the alimony or the division of assets etc.

Furthermore, in matters where the validity of the marriage is called to question, as long as the marriage complies with the requirements of the legislation of the country where it was concluded, the marriage shall be deemed valid.

 Custody of Children

Mothers and fathers of children do not share equal parenting rights and responsibilities in the UAE as they do in many other foreign jurisdictions.

Upon the finalization of a divorce in the UAE, the father will be deemed the “guardian” and the mother the “custodian” of their minor children.

The guardian is responsible for the provision of schooling, healthcare, accommodation, and guiding the children in respect of matters pertaining to morality, character, ethics, and religious beliefs where applicable. Whereas, the custodian is responsible for the day-to-day care of the children for example, daily transport to and from school, sustenance, clothing etc.

As prescribed in Article 146 of the Personal Status Law, the mother will have custody of the children until they reach the age of adolescence. Except where the court decides otherwise, custody will then transfer to the father once the children reach the age of 13 for girls and 11 in respect of boys.

Custody claims will be assessed by the Dubai court on a case-by-case basis, taking into account what will be in the best interests of the children.

If you have any queries in respect of obtaining a divorce in the UAE, or for clarification as to how it may affect you and your family, please contact one of our experienced family dispute lawyers at HHS Lawyers and Legal Consultants, one of the leading family law firms in Dubai.

 

Last modified: March 16, 2021