UAE's new family law sends out a welcoming message

The UAE can be proud of the many things that it has achieved in recent times, but perhaps close to being top of that list is the introduction of a new civil family law regime applicable throughout the country.

Before these changes, each emirate had its own personal status law and court, part of the role of which was to regulate residents’ family law issues. Although these courts are not strictly Sharia based, they are Sharia led.

This creates a cultural platform in areas such as in family law which is quite different to that operable in countries in the West. For some residents who come from abroad and especially for non-Muslims, this disconnect could be challenging and sometimes led to families seeking to have their legal disputes resolved in their countries of origin.

These different approaches existed in the parenting roles for men and women, in the support provided for wives in divorce by families rather than ex-spouses and the treatment of money accumulated during the marriage on a financial application following a divorce.

The introduction of a civil family law is intended to address this cultural disconnect and provide non-Muslim residents and families living in the UAE with outcomes that feel more familiar and therefore hopefully cause less anguish and acrimony during relationship breakdown.

It also allows families to obtain a remedy in their country of residence rather than their country of origin.

A key part of the new law is to not differentiate between parties on the ground of gender – this being in some ways the opposite of the previously applicable personal status law that specifically provided for gender-defined roles of Guardian (the man) and Custodian (the woman), with different obligations, powers and duties arising from those two parenting roles.

The clearest and most substantial manifestation of this gender non-differentiation is the new starting point of “joint custody”, where it is a fundamental principle that the mother and father shall jointly share the responsibility of raising children after divorce.

For this to be disapplied, and sole custody sought and obtained, one must specifically apply with good reason in support. This is a helpful move forward for expatriate non-Muslim residents in the UAE who can now enjoy a non-gender based outcome in a custody dispute.

Under the personal status law the financial award on a divorce has an entirely differently principled foundation than one obtained in a western country. Culturally and historically in the UAE, there is no expectation for ex-spouses to provide ongoing financial support for the other ex-spouse on divorce unless that support is for a child.

There is a greater emphasis on family support in such a situation and with the provision of compensation, bringing a marriage to an end is considered locally a much simpler, less burdensome exercise. Abroad and in western countries, it is considered quite differently: marriage is a partnership that brings with it an obligation of future support and sharing of that which has been generated during the marriage, whether a specific de jure (as in France) or de facto (as in England) community of property regime exists.

The new civil family law therefore broadens the scope for financial orders upon a divorce to allow for spousal maintenance and lump-sum orders that reflect this different expectation and perception of what a marriage creates and represents to those expatriate residents.

Now an ex-spouse can receive ongoing monthly support from their richer former spouse, perhaps to reflect the fact that the relationship generated career disadvantages (such as having children or otherwise) and to share more in that which was created during the marriage albeit perhaps held in the sole name of just one party.

To assist the court with these greater financial powers on a divorce, the new civil family law also allows for a sophisticated disclosure process conducted by a third-party accountant expert, who provides a report on the assets and income of the parties.

In many countries around the world, it is possible to seek financial relief after a foreign divorce. This means that court proceedings in their country of origin could still be relevant for a non-Muslim resident of the UAE even if they have obtained a divorce in the Emirates.

This facility is usually available only when there is a deficiency in the financial order obtained at first instance. With these increased powers and the wider scope now applicable in the UAE, it will make such applications less possible and therefore fewer. As a result, it will keep proceedings on separation in one place and in one court.

The new civil family law has already been well received internationally, with the well known and well-regarded English judge Edward Hess’s ruling that the English court would defer to the Abu Dhabi Civil Family Court in a decision reported in the English law reports in October 2022. It is assumed this will be the first of many such endorsements in the near future and onwards.

This ultimately is another welcoming gesture by the UAE to its expatriate non-Muslim residents. It is intended to send to them a message that they should feel comfortable building a life, a family and a home here and know that if a separation occurs – or if one already has – a culturally relevant outcome is available for them.

It is another stark example of the UAE placing itself in a uniquely modern position and underlines its status as a progressive country that truly values its international communities.