Women’s rights in Marriage and Divorce based on Sharia Regulations and the UAE Personal Status Law (Part 1 – Women’s rights in Marriage and the Marriage Contract)

20 Sep, 2018

  "Islam affords women their rightful status, and encourages them to work in all sectors, as long as they are afforded appropriate respect."

 

HH Sheikh Zayed bin Sultan Al Nahyan
UAE Founder and Former Ruler of the Emirate of Abu Dhabi

 

Introduction

The history of United Arab Emirates goes back in time thousands of years, far more than most of us might usually think, reaching the Bronze Age culture which existed around 2600-2000 BC. During that time, the domestication of camels and animals took place, leading to inland settlement and cultivation of crops.

Before the Union, which took place in 1971 and led to what the world knows today as United Arab Emirates, all the 7 emirates, were known as the Trucial States, a protectorate of the British Empire.

During those times, most disputes or conflicts were managed by the heads of the local tribes or unofficial judges, following the customary law. The primary source of law was Islam, alongside with the unwritten social conventions or Urf. Sharia judges were specialized in matters regarding family disputes, whilst the customary law judges handled the criminal cases and other personal claims.

On the 2nd of December 1971 the 7 Emirates decided to come together and proclaim the Union among them as a Federation. Moreover, on the same date, the Constitution of the UAE came into effect and was permanently accepted in May 1996.

Dubai’s legal system is founded upon civil law principles and Islamic Sharia law, the latter constituting the guiding principle and source of law. As in most of the countries using civil law jurisdictions, in Dubai also, the legislation tends to be formulated into a number of major codes providing for general principles of law with significant amount of subsidiary legislation.

Over the last 30 years, UAE was faced with an enormous influx of regional and international enterprises, which caused as well an exodus of international workers coming over from all around the world. This fast growth wouldn’t have been possible without the legal frame of the UAE and without the continuous work of improving it for the last 47 years.

 

Part 1

Women’s rights in Marriage and the Marriage Contract

 

The negative international news of the last decade, starting with the 11th of September 2001, casted a bad light over the Middle East countries, with huge effects over human rights and most of all, over women rights and their position in the society. For most of the aliens looking to move over in the UAE, or even for those ones already living  here, the provision regarding the family matters from Islamic Sharia Law, remain a very sensitive subject, yet very important one. The fear of the unknown, mixed with a lot of dishonorable interpretations of the Islamic regulations and the Arab world, creates the perfect conditions for everyone to ignore the fact that women do have rights in Muslim countries, they are allowed to choose for themselves, to work along the man and to be part of the community they are living within.

The constitution of the UAE, is the first legal instrument that stipulates in Chapter No.2, Article no. 2, that “’equality, social justice, the provision of safety and security and equality of opportunity for all citizens shall be the bases of the community. Mutual co-operation and respect shall be a firm bond between them”, without distinguishing between men and women and underlying that all UAE citizens have equal rights.

Furthermore, Article no.16 of the same chapter, sets out that whole society shall be held liable for protecting the childhood and motherhood, insisting once again on the very important role of the women and the fact that theirs role should be protected by the whole society, not only by the close circle of relatives and acquaintances.

There are other three major laws, regarding the family matters in the UAE: Federal Law No. 28 of 2005, also called Personal Status Law, Federal Law No. 11 of 1992, the Civil Procedure Code and Federal Law No. 5 of 1985, Civil Transactions Code.

The UAE's Sharia-based Personal Status Law covers marriage, divorce and succession. The courts' interpretation of family law provisions are based on Sharia regulations, which the UAE mandates is used as the primary legal justification on matters involving family law. The commentary of this law is heavily oriented and related to Sharia principles following the Imam Malik School.

Article no. 1 of the Personal Status Law specifies that the law will be applicable to non- Emiratis (people having another citizenship, other than the UAE one), unless they insist on choosing their own home country’s law. It also applies to all UAE citizens, excepting the case where non-Muslim citizens “have special rules relating to their community or confession”.

As per the UAE’s regulations, the only legal bond for a man and a woman to establish a relationship and form a family is marriage. Cohabitation for the unmarried couples is strictly forbidden and it is considered a criminal offence.

Marriage itself, it is identified as a legal contract between a man and a woman, focusing on protecting the rights of the couple and their children. As in other jurisdictions, there are few conditions that have to be fulfilled by a couple in order to be able to get married.

The first condition, and the most important of them all, is regarding the religion of the future spouses. If both groom and bride are non- Muslim, but they are both residents in the UAE, they can conclude their marriages at the consulate of their country in the UAE or at any temple or church as per their religion.

When both groom and bride are Muslims, their marriage will be conducted according to the Sharia provisions. If only the groom is Muslim, the bride has to be from what is called “Ahl Al- Kitaab” (which includes only Christians and Jewish), any other religion of the bride will not be taken into consideration, unless she will convert to Islam or to one of the religions recognized by the Islam (Christianity and Judaism).

While the law permits a Muslim man to marry a non-Muslim woman, it does not allow a Muslim woman to marry a non-Muslim man without proof of his conversion to Islam.

The second condition is referring to the age of the future spouses. Whilst the age of majority in the UAE is 21 years old, the age of maturity is 18 years old and whoever matures before reaching the age of 18, will be allowed to marry by the authorization of the judge, after he will prove an interest.

Another major condition is concerning the tutorship of the future bride to be. Pursuant to the provisions of Article no. 39, Personal Status Law, in order for the marriage contract to be valid, the tutor of the future bride, after having her consent will carry on with the procedures regarding the marriage. She will only sign the marriage contract in front of the religious authorized official.

Any concluded marriage that took place in the absence of the bride’s tutor will be invalid.

It is of great importance to shed the light to the widely interpreted purpose of the institution of the tutorship as it is not a new demand for countries following the Sharia’s principles, like UAE. The main purpose of having such a condition to be followed upon marriage, is not to replace the consent of the woman by her tutor’s consent, but to make sure that she is protected and she will not be deceived into a marriage that wouldn’t suit her aspirations. Furthermore, the tutor has to be the father of the woman and if he is missing or is deceased, his duty will be passed to the next agnates, in the following order: son, then brother, then uncle. The kinship and the affective relationship between the father and his daughter (or in any other case where the father cannot fulfill his duty) should represent enough proof that the tutor will act only in the best interest of the woman. The tutor can only be a sounded mind person and fully capacitated. As for those cases when a woman cannot have a tutor, the judge will be the one who will substitute the tutor’s position.

Among the other conditions of the marriage contract stands the presence of two witnesses. Like the tutor, they have to be: Muslims, male, enjoying full capacity, sound minded and last but not least they have to hear and understand  the words pronounced by the contracting parties and have to be sure with no doubt that the aim of such words is marriage.

When a Muslim is marrying a Christian or a Jewish woman, they witnesses can be Christians or Jewish in accordance with the woman’s religion. Once again, the condition referring to the witness presence is essential for validity of the marriage contract.

Finally, the last mandatory condition regarding the marriage contract’s validity is represented by the dowry.

As mentioned in Article no. 49 of Personal Status Law, the dowry is the money or property offered by the husband to his wife for the purpose of marriage. In the second thesis of the same article it is mentioned that the law doesn’t prescribe a minimum amount for the dowry, but it does mention that the maximum limit of it will be subject to the Law of Dowries.

The meaning of the word dowry, from the English version of the Personal Status Law, somehow does not sum up the real and full meaning of it, which in Arabic is mahr.  The term "dowry" is sometimes incorrectly used to translate mahr, but mahr differs from dowries in many other cultures. A dowry traditionally refers to money or possessions a woman brings forth to the marriage, usually provided by her parents or family.

Mahr also can be classified as a form of "bride wealth", being given directly to the bride and not to her parents. In fact, as her legal property, mahr establishes the bride's financial independence from her parents and in many cases from her husband, who has no legal claims to his wife's mahr (Article no. 50, Personal Status Law).

The widely interpreted purpose of the dowry is to secure the financial independence of the woman and for this reason she is not allowed to waive it. Article no. 51.2, Personal Status Law, is mentioning that for those situation when the dowry’s amount is not determinate in the contract, it’s invalidly stated or it’s originally dismissed, the woman is still entitled to an equal dowry payable to a bride under the same circumstances. Dowry payments must be given priority over inheritance matters and must be considered conclusive. Any property that is owed to the deceased's wife must be transferred to her before distributing the rest of the estate.

When all the above mentioned conditions are fulfilled (religion, age, tutorship, witnesses presence and dowry), the marriage contract is deemed to be valid, generating the effects specific to such an agreement and above all, a series of mutual rights among the spouses.

Article no. 54, Personal Status Law, is stating the “mutual right and duties between spouses”, such as: the right to enjoy each other within the legally permitted limits; good treatment, mutual respect, kindness and protecting the welfare of the family; carrying to educate the children to ensure their good raising. All the provisions mentioned in Article no. 54 are in charge of both spouses. They have to respect each other, offer each other a good treatment, protect their family and care for their children and or their education. These categories of rights are not something new, either for Western legislations or for the ones in the Middle East, proving once again that marriage has to be a bond between man and woman from which both of them have a lot to gain and nothing to lose, regardless of where they decided to celebrate their marriage or to set out their family.

Article no. 55, Personal Status Law, goes on listing a series of women’s rights which are due from her husband. She is entitled to receive alimony from her husband (after separation for three months only), she has the right to complete her education, to visit her family, to manage her personal properties and to be protected from any inflictions that would bring any prejudice to her body or mental health.

This specific article aims to highlight the fact that under Sharia provisions and following the Islam principles women do have rights, which are clearly comprised in the provision of the Personal Status Law. Women’s right are personal, they cannot be transferred or ceased. Every woman’s duty is to be aware of her legal rights and to take use of them whenever someone is trying to deprive her of them.                                         

Among the General Provisions regarding the effects of marriage, one of the woman’s rights mentioned above is reiterated. Article no. 62, Personal Status Law,               mentions that women are free to dispose of their properties; the husband may not dispose of his wife’s property without having her consent and moreover, each of the spouses shall have separate financial assets.

Second thesis of the same Article underlines that if one of the spouses is helping the other one in developing his/her own property, she/he will be entitled to claim his/hers share from the other upon divorce or death. Therefore, it is undoubtedly stated that both spouses have full rights of disposition over their personal assets, regardless their gender and furthermore they are granted compensation when helping the other spouse expanding his/hers property.

Throughout the matrimony, the law provides maintenance due from the husband to the wife and children. Maintenance cost shall cover expenses such as food, clothing, a house, treatment and even a servant for the wife if she is used to have one in her parent’s house. The enumeration is not exhaustive, proving any type of maintenance in accordance to marital relations. However, maintenance cost has to be determined accordingly to the financial status of the maintainer and the economic situation of place and time, but it cannot be less than the sufficient limit, to provide food, cloth and safe shelter

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