The circumstances in Court to grant a divorce by mutual consent and its waiting period

UAE: Divorce by mutual consent can be best understood as the legal process by which both the husband and wife mutually agree for divorce and, therefore, would like to terminate the marriage as per agreed terms. The mutual divorce petition is thus jointly submitted by the husband and wife to the Court.

In a mutual divorce, the parties often seek independent legal advice in order to obtain legal advice on the provisions governing separation, custody rights, visitation, alimony, property division etc. They would also seek expert legal advice in order to enter into a written settlement agreement finalizing the terms of the mutual divorce.

When a mutual divorce is agreed upon between the spouses, they often do not need any further judicial adjudication, as the spouses are not making any allegations against each other that require to be resolved by the judicial courts. This type of divorce is usually preferred by a couple as it gives them a higher degree of control over their separation terms. The parties can mutually negotiate and enter into separation terms that are tailor-made and suitable to their personal and unique conditions, rather than relying on separation terms that are imposed by a court of law.

The mutual divorce process in the UAE:

A mutual divorce process is accepted in the UAE. The first step in the process includes an application to be filed before the family guidance committee of the respective emirate where the parties are residing. The family guidance committee receives the application and would assign a counsellor to the case. The role of the counsellor is that of an independent mediator and to try to resolve the disputes and issues raised by parties. When the parties wish to enter into a mutual divorce, the family guidance department would confirm the consent of both the parties and facilitate the steps for signing the terms of the settlement agreement, which would finalize the divorce.

The mediation step is mandatory even in amicable divorce matters and has to be completed by the parties. In the instance any given party does not agree to enter into a mutual divorce, then they may request the family guidance department to provide them with a referral letter in order to approach the Court for further adjudication.

Separation period:

Unlike other jurisdictions, the UAE laws do not require a mandatory separation period to be imposed on the spouses prior to a final divorce being granted in the UAE for non-Muslim residents. Other foreign jurisdictions usually require a mandatory separation period of twelve (12) months to be imposed prior to a mutual divorce application to be submitted before the courts. UAE does not have this mandatory provision for non- Muslims. However, the parties have to participate in the mediation process before the family guidance committee before a divorce is granted by the courts.

The general considerations for legal recognition of a mutual divorce concluded in a foreign jurisdiction is whether due process of law has been followed in obtaining the mutual divorce. A mutual divorce agreement concluded in the UAE is valid and enforceable in other jurisdictions around the world.

Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.