When a couple decide to get a divorce, the issue can be further complicated when they are residing in a foreign country unaware of the local laws and procedures that are applicable. The laws governing divorce here are very different to the UK for example, and are more complicated if there are children and assets involved. Below are some frequently asked questions by expatriates:
1. Where can I divorce and which law prevails?
Expats have a choice of jurisdiction as to divorce proceedings through their domicile, residence or nationality. Foreign nationals can file for divorce in their home country or in the UAE. They can even divorce under their home country’s laws in the UAE so long as they are both citizens from the same foreign country. The issue becomes complicated when both parties have different nationalities. Where the husband is a national of one country and the wife another, the law of the husband would be upheld as per UAE law. In situations where the home country laws do not fully cover certain aspects of the divorce procedure, the courts here would have discretion to apply UAE law.
However, when choosing jurisdiction, it is very important to seek legal advice from a licensed lawyer from the outset, as the jurisdiction in which you decide to divorce in can have a huge impact on your financial settlement, maintenance and custody of your children.
2. Where do I initiate proceedings?
Once proper legal advice is sought, either party can open a file to divorce at the court stipulating their decision to dissolve the marriage. This is followed by a meeting with a conciliator at the court to ascertain if an amicable agreement can be reached or not between the parties. This is mandatory for divorce proceedings in the UAE. If a resolution cannot be reached, then the matter proceeds before the courts.
3. Is the divorce process very long in the UAE?
A divorce can be concluded in approximately three months if both parties are able to reach an amicable agreement with regards to finances and arrangements for children.
4. Who will get custody of my children?
It is important to note that in the UAE, parents do not share equal parental responsibility. However, the court here will always act in the best interests of the child and unless they are given a reason to believe otherwise, in this jurisdiction following a divorce the mother will become the ‘custodian’ and the father the ‘guardian’. Usually the custody of the children remains with the mother until the children reach the age of puberty. If the transfer of custody to the father is disputed after that point, the court will make a decision based on the facts of the individual case. The mother is responsible for the day to day care of the children. The father as guardian is responsible for the child’s education, medical treatment, accommodation and guiding them in terms of morals and religion.
5. As a guardian, can I visit my children?
Following a divorce, a guardian can make an application to the court so that he (usually the father) can obtain visitation rights to visit his children. The guardian is entitled to visit his children regularly. Therefore, the mother as custodian of the children cannot permanently move to another country in order to deliberately prevent such contact by the father.
6. Am I able to leave the country with my children?
Leaving and removing a child without the consent of the other party amounts to child abduction. This is a very sensitive situation particularly when a mother wishes to flee this jurisdiction to avoid the application of the local UAE law. Even your home country is likely to return abducted children to their country of residence. If either parent has concerns that their permission will not be sought for travel, they can obtain a ‘travel ban’ preventing the child leaving the airport. In such situations, it is prudent to speak to a lawyer about the arrangements and safeguards that can be put in place if you feel there is a potential risk of child abduction arising.
Nita Maru is a British qualified solicitor and Managing Partner of TWS Legal Consultants. Call 04-4484284, visit www.twslegal.ae or email email@example.com.