Women’s rights in Marriage and Divorce based on Sharia Regulations and the UAE Personal Status Law (Part 3 – Women’s rights, Children Custody and Guardianship)

20 Dec, 2018

In compliance with UAE regulations, under no circumstances a husband can claim spousal maintenance from his wife, even though if the case is that he is the one having the custody of the children.

Custody of the minor children is another primordial matter that has to be resolved upon divorce. As per the definition of it comprised in the Personal Status Law, custody represents the keeping, bringing up and taking care of the child, without interfering with the right of the guardian of the person.

Custody’s definition refers to the guardian subject as well. According to the Article no. 178, Personal Status Law, Guardianship includes guardianship of the person and guardianship of property.

Guardianship of the person is the care for all the minor’s affairs, including supervising, protecting, raising, educating him, directing his life, prepare him well and agreeing to get him married. Guardianship of the property represent the care for all the matters related to the minor’s property, its protection, management and investment and shall include guardianship, curatorship and legal representation.

Under the Personal Status Law, there are two main rules guiding the children’s status, after the divorce of the parents or in case of the occasion of death of the father. The first rule is referring to the custodian, role usually assumed by the mother of the child, which includes being responsible for their day-to- day needs, such as feeding, clothing, sanitation and having the physical custody of the child.

The second rules is regarding the guardian, who is responsible for financial maintenance of the child (schooling fees and housing of the child), role undertaken usually by the father.

As a result of these principles, parents do not have equal parental rights when comes about the status of their children upon termination of marriage. Sharia rules regarding parental responsibility do not embody same concepts as the ones identified in other jurisdictions, assigning different roles for the parents after a divorce.

Article no 142, Personal Status Law, outlines the general conditions for being a custodian, which are: being sound of mind; of legal age and major; honest; capable of bringing up; protecting and caring for the child taken, safe from dangerous infectious diseases and most important of all, not being convicted of any dishonorable crime.

In most of the situations the custody is rendered to the mother. However, the mother may not be considered fit for the custody if she remarries, becomes insane or is charged with a criminal felony, case in which the father will become the custodian. Even he, in order to be granted the custody, has to insure that he has a female to take care of them, such as his mother, sister or another capable wife.

Notwithstanding these rules, custody granted to the women terminates once the child reaches 11 years old (for boys) and 13 years old (for girls), except if the judge decides it’s in the child’s best interest to extend this period until the male reaches the age of majority (21 years old) or female marries.

In most of the situations, when a custody case is pending before the courts, in order to solve it, the judge takes into consideration the child’s interests as first priority.

The child’s comfort, security, wellbeing is the main basis of the legislation, as for example, many of the provisions incorporated in the Personal Status Law using words such as “for the child’s interest” or providing that “the judge should choose the most suitable custodian for the child”.

According to Article no. 180, Personal Status Law, like the custodian, the guardian must meet the following conditions: legal age, sound minded, honest and capable of performing the guardianship requirements. As mentioned above, the guardianship of the child shall be awarded first to the father and after to the agnates from the father’s side, as per the order of inheritance.

If there is no person entitled to guardianship, the court shall appoint a guardian of the person from the minor’s relatives

The law provides for visiting rights also. Article no. 154, Personal Status Law guarantees the right to visit and to be visited by the child for the non-custodian parent. This specific right is left to the discretion of the judge, provided that the time, place and the person responsible for bringing the child are specified.

The custodian, which in most of the cases is the mother, is not allowed to relocate with the child to another city within the state, if such movement affects the child’s education or is causing any harm to the father or makes him suffer any unusual hardship or cost for visiting him. In these types of situations she risks as well, losing the child’s custody.

The custodian must obtain a written agreement of the guardian before taking the child out of the UAE, whether the custodian is the mother or another person. Additionally, where the guardian refuses to give a written agreement, the custodian can refer the matter to the courts. However, no guardian, father or otherwise, can take a child for purposes of travel within the custody period without the written consent of the child's custodian. Therefore, both parents should seek consent from the other to take their children out of the country.

The last effect occurring upon dissolution of marriage affects the sponsorship of the divorced wife. It is of crucial importance to mention that in the UAE any person who wishes to reside within the state must have a residence visa, which can be obtained only if the said person has managed to find a job in the UAE. In order to obtain a working permit, the new employees need to have a sponsor as well, which usually is the company/ the employer they are working for.

For those situation when a wife does not have a job in the UAE, she will be allowed to have a residence within the state, along with her and their child/children being sponsored by her husband.

The main issue arising from such situations (when a wife is sponsored by her husband) is that once the divorce procedure is over, and the spouses are declared separated, the husband ceases to be the sponsor of the women. Within 30 days from the divorce she is required to leave the country, unless she manages to find a job during this period, which in most of the cases is unlikely.

Sometimes, dissolution of marriage can caused by the death of the husband, which will also lead to deportation of his widow within 30 days from the decease date.

With plenty cases of divorcees or widows in the UAE, the authorities decided to extend the period of 30 days to 1 year for divorced women or widows. The UAE Cabinet adopted the decision on 12th of June, mentioning that its aims is to give the women opportunity to adjust their social and economic status before leaving the country.

The decision grants widows and divorced women and their children living in the UAE the option to apply for a 1 year residency visa without the need for a sponsor. It is worth mentioning that the decision will be in force starting the last quarter of 2018.

Whereas a lot of aliens are living in the UAE, a lot of questions have been raised in regard to international Child Abduction. Despite the fact that UAE is not signatory to The Hague Convention on the Civil Aspects of International Child Abduction, they have implemented a process called “travel ban” to solve such matters. Travel bans are issued by the civil courts summary judges, and are usually issued to the applicant on the same day, due to their urgency. The applicant must prove fear of abduction by the respondent. If the judge is satisfied that there is a real fear that the child will be moved away from the applicant and the fear is established before the court, the judge will order a travel ban on the child. In practice, the child's name is listed at all entry points to the UAE, such as airports, ports, borders with neighboring countries, where the officers on duty will not allow the child to leave.

In conclusion, family aspects are given a great significance in the UAE and in most of the countries following Sharia principles. A very important aspect with regards to the UAE regulations is the merge between Islamic teachings and the civil rules, striving to create together a modern framework without leaving behind religious precepts.

Furthermore, aspects analyzed in this article should enlighten and clarify all those misconceptions concerning women’s right and status under Sharia law. Women are considered equal to men, sometimes superior to them even, the law providing them with special protection, which is not the case for men.

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