On November 26, 2018 the Dubai Court of Appeal issued the first judgment of its kind in the UAE, that grants shared custody to the divorced parents similar as it is known from European jurisdictions.
The parents (both have their origin in Europe) filed for divorce in 2016 at the Dubai Court. In the judgement of first instance, the judge decided, following the common Sharia pattern, that the father will be granted the guardianship and the mother custody of the common children. Both parents, for different reasons, challenged this judgement. The father’s focus was to achieve a different outcome in regards to the custody.
B. Principles of UAE Law
- Judgements, like the one mentioned above, are very common in the UAE. Unfortunately, they often lead to the situation that children grow up with only one parent being physically present. The relevant UAE law (Personal Status Law No. 28 of 2005) distinguishes between guardianship and custody. That means in particular, that the father, who is usually granted guardianship, has to take care of the financial needs of his children. In theory he is also responsible for all major decision that concern his childrens’ life. The mother on the other hand is granted custody, i.e. she has to take care of the daily needs of her children. The time frame for the mother’s custody is limited to the age of 11 for boys and to the age of 13 for girls. Up to this age the children usually live in the household of the mother and the father has a right to regularly visit them. In case the children have reached the age of 11 or 13 they are supposed to transfer to the household of the father, although this is up to the discretion of the judge.
- For the first time now, a judgement deviates significantly from old habits practiced in UAE courts. In the judgement issued by the Dubai Court of Appeal in November the judge decided, that under the application of Spanish law, the parents will be granted joint custody. The father who is originally from Spain had filed a motion in his appeal that Spanish law shall be applied, as this is the law of his home country. Non-Muslim expats who live in the UAE have the possibility to ask the court to apply the law of their home county in personal status affairs as for example divorces and its consequences. Though this seems to be an easy way to opt-out of the application of the highly Sharia infused UAE Personal Status Law, several problems can arise. First, the judge has to apply a jurisdiction he is not familiar with, what most likely may leads to problems and misunderstandings. In addition, the party claiming the application of its home jurisdiction has to provide the court with an official legal translation of the applicable law of its home country. In the case of Germany that would mean the translation of the whole civil code, as the 4th book, family law, is part of the ongoing numeration of paragraphs. If only segments are submitted, courts tend to dismiss the motion for the application of German law, as the translation is deemed not to be complete.
- Compared to the German family law as part if the German Civil Code, the Spanish family law is isolated and not part of a voluminous civil code. This made it easier for the appellant in this case to convince the court to apply Spanish law. Beyond that, the Spanish father went public in the media which led to a lot of pressure on the court.
These factors have to be kept in mind, to see this judgement not as the revolution a lot of people have been waiting for. It is a move in the right direction, but it cannot be guaranteed, that this will be a precedence shifting custody issues for expats in a whole new direction. It is still recommendable to keep the childrens’ needs and wellbeing as a focus in legal proceedings and to facilitate the aim of finding amicable solutions for both parents in regard to custody, even beyond a court order.