All you need to know: Divorce, Judicial Separation & Annulment of Marriage in United Arab Emirates

In the United Arab Emirates (UAE), until very recently, Federal Law No. 28 of 2005 (the UAE Personal Status Law) was governing divorce and other family-related conflicts. Abu Dhabi Law No. 14 of 2021 (the Abu Dhabi Law) is a new law released by the Emirates of Abu Dhabi that primarily affects non-Muslims living in Abu Dhabi. Muslims in Abu Dhabi are still subject to the UAE Personal Status Law.

As of February 2023, non-Muslim citizens of the United Arab Emirates will be protected by a federal Civil Personal Status Law. After a Personal Status Law for non-Muslims in Abu Dhabi was put into effect, the federal government enacted the New Federal Law. If neither non-Muslim expat resident wishes to apply his or her home country's legislation in the UAE, then the New Federal legislation covering matters connected to alimony, custody, inheritance, and parentage will be implemented.

The purpose of this article is to provide an overview of these legal processes and their associated laws, procedures, and requirements.

Divorce and Judicial Separation in UAE:

Judicial Separation is a process by which the court does not dissolve the marriage but allows the parties to live separately. The UAE laws do not provide for such a process, and therefore the parties may choose to divorce instead. Divorce is a legal process that dissolves the marriage contract between two individuals. In the UAE there are two types of divorce, namely mutual divorce and contested divorce. Mutual Divorce occurs when both the parties agree to end the marriage. Whereas, in a contested divorce one party usually files for divorce, and the other party disagrees to the request of divorce.

Divorce under Federal Law no 28/2005:

For Muslims in the UAE, divorce is the cancellation of the valid contract of marriage between the parties. Divorce proceedings can be initiated either by the husband or, if the husband has granted his wife that right (Isma'), by the wife. Wives can file for divorce for 'damage' even if their husbands don't explicitly allow it in their marital contracts. Harm can be defined in a variety of ways, including the 7 grounds for divorce listed below.

Divorce can be obtained in one of two ways:

The first is the Arabic 'Talaq' (which translates to 'I divorce you'). In the presence of a witness, either the husband or wife (if she possesses Isma) must pronounce or write "I divorce you" or "Talaq." According to Islamic law, this is a permissible means of dissolving a marriage; nevertheless, the divorce must be registered with the court before it may be acknowledged in civil court.

According to Article 106 of the Personal Status Law, a divorce is legally binding once it has been authenticated by a judge. The witness could testify in court if there is a dispute over whether or not the Talaq was actually said. If one partner initiates divorce proceedings by uttering the Talaq without the other's agreement, that person could face financial consequences.

Divorce can also be obtained through the judicial system (called "separation by way of a judgment"). The applicant will file for divorce, and the court's Family Guidance Committee will hear their case.

Before filing for divorce under Article 98 of the Personal Status Law, the Family Guidance Committee will attempt reconciliation between the parties. The family counselors are not lawyers, but they do have mediation and counseling skills. They sit down with both sides, and if they still can't get along, they bring it before a judge. The judge will then determine whether or not the grounds for divorce are sufficient. For example:

1. Separation due to defects
1. Defects including insanity, leprosy, impotence, and venereal disease: A party can only rely on such 'defects' as a reason for divorce if they were unaware of the defect at the time of marriage. Article 113 of the Personal Status Law allows the court to postpone a case for up to a year while it investigates whether or not the deficiency can be "removed."
2. Serious dishonesty on the side of either party during the marriage's creation. Article 114 of the Personal Status Law allows for a divorce to be filed on the grounds that one spouse was deceived into entering into the marriage contract.
2. Divorce due to unpaid dowry (Mokadam).
3. Separation due to harm or disputes

According to Article 117 of the Personal Status Law, a spouse may file for divorce if the other spouse has caused such severe emotional or physical suffering that continuing the marriage would be impossible. The court could then ask for the findings of an investigation conducted by two arbitrators into the causes of the parties' disagreement. There could be monetary repercussions if one party is found at fault.

4. Divorce may be granted to a wife who was not provided for financially during the marriage if the court determines that her husband has the means to do so but chose not to do so.
5. If one spouse disappears without warning, the other spouse may file for divorce. A divorce decision would not be issued until one year had gone after she filed for one and her spouse had not returned during that period.
6. A spouse may file for divorce if their spouse has been sentenced to a prison term of more than three years and has already served at least one year of that term.
7. A divorce can be granted on the grounds of desertion (Arabic: 'Hajr') if the husband abandons his family and does not return within four months of his wife's request.

In Muslim divorces, the waiting period is known as the Iddah. After the court has issued the Talaq, there is a three-month waiting period. If the woman is expecting a child, the waiting period will not end until after the baby is born. During this time, the wife is expected to remain single. The couple should wait to see if the woman is pregnant, but they should also use this time to think about whether or not they can get back together. No matter who filed for divorce first, the waiting time always results in the husband covering the wife's living costs.

Divorce can be finalized either temporarily or permanently. The parties can continue to be legally married during the waiting time because their divorce is reversible. If they want to get back together after that, they'll have to sign a new marriage contract.

Federal decree law no. 41/2022 which is applicable to the non-muslims citizens of UAE, provides for no-fault divorce under Article 7, where either of the parties may express before the court their intention to end the marriage without the need to justify any wrongdoing during the course of their marriage. Divorcing couples who file for divorce under the new law are not required to first seek mediation through the Family Guidance Committee in an effort to repair their relationship; instead, they can go straight to court.

The divorce is finalized immediately following the pronouncement of the judgment, and the wife is not required to wait any specific amount of time.

Annulment of marriage in the UAE:

As per the UAE Family Law, an annulled marriage is a cancellation of the marriage from the beginning. Annulment of marriage in the UAE is a legal procedure to cancel the marriage in such a way that it is completely erased, legally, and it declares that the marriage never technically existed and was never valid. A marriage may be annulled if it is against the public policy of the UAE.

In certain circumstances even a validly attested marriage certificate would not be sufficient to allow a marriage to be recognized in the UAE. This is because in Islam, certain marriages are not capable of recognition. These are as follows:

• A marriage between a Muslim man and a woman who is not Muslim, Christian or Jewish.
• A marriage between a Muslim woman and a non-Muslim man

Legal Update:

The above information might not apply if both parties are non-muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-muslim expatriate residents in case none of them wanted to apply his/her home country's law in the UAE. To know more information about this law, please feel free to click this link.

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.