Understanding Divorce by Unilateral Will in the UAE
The introduction of the UAE Civil Personal Status Law has redefined family law for non-Muslims, particularly in divorce proceedings. Previously, non-Muslims in the UAE were subject to the same divorce regulations as Muslims, primarily governed by Islamic Shari’a law, unless both spouses were from the same country and had requested the application of their national law. However, with the implementation of Federal Decree-Law No. 41/2022, the legal framework for divorce has undergone significant changes, making the process more accessible and efficient.
Before delving into the updated law, it is essential to understand the earlier legal framework under Federal Law No. 28 of 2005, which governed personal status matters for both Muslims and non-Muslims alongside provisions from the UAE Civil Transactions Law.
Divorce Under Federal Law No. 28/2005
Under the Personal Status Law (Federal Law No. 28/2005), divorce was defined as the dissolution of the marriage contract. The right to initiate divorce was primarily granted to the husband, while the wife could seek dissolution only under specific circumstances, such as conditions agreed upon in the marriage contract or cases of harm.
For a divorce to be legally recognized, it had to be registered with the court, with spouses first required to attempt reconciliation through the Family Guidance Committee.
Grounds for divorce included:
- Mental illness, deception, or other serious defects.
- Failure to pay the dowry (Mahr) in an unconsummated marriage.
- Irreconcilable marital conflict.
- Financial neglect, abandonment, or prolonged imprisonment of a spouse.
Key Amendments Under the Civil Personal Status Law
With the enactment of Federal Decree-Law No. 41/2022 and Abu Dhabi Law No. 14 of 2021 on Civil Marriage, the divorce process has become significantly more straightforward. A pivotal change is the elimination of mandatory mediation—spouses can now bypass the Family Guidance Committee and proceed directly to court.
The most significant amendment is the introduction of divorce by unilateral will, enabling either spouse to file for divorce without providing justification or proving harm.
Under Article 7 of Federal Decree-Law No. 41/2022:
- Neither spouse is required to establish fault or blame.
- Divorce can be initiated jointly or unilaterally, with a court notification issued to the other party.
- Unlike previous regulations, there is no mandatory waiting period for women; divorce takes effect immediately upon the court’s ruling.
- On average, a divorce judgment is issued within three to four weeks, with a 30-day appeal period.
Implications of the Divorce Judgment
If a marriage contract lacks pre-agreed terms regarding alimony or financial entitlements, the court determines settlements based on several factors, including:
- Marriage Duration – Longer marriages typically result in higher alimony.
- Wife’s Age – Younger wives often receive lower alimony, whereas older spouses may be entitled to more.
- Financial Status – A court-appointed financial expert assesses both spouses’ financial standing.
- Husband’s Role in Divorce – If the husband is found at fault, this may influence alimony decisions.
- Emotional or Material Damages – Compensation may be awarded for harm suffered during the marriage.
- Financial Impact of Divorce – If one spouse faces financial hardship due to the unilateral divorce, it may be factored into the ruling.
- Child Custody Costs – The father is responsible for supporting the mother’s expenses related to child custody during the first two years of shared custody.
- Mother’s Role in Childcare – Courts may consider the mother’s contribution to childcare when determining financial support.
Alimony ceases if the wife remarries or loses child custody. Additionally, either party may request an adjustment to alimony if circumstances change significantly.
If financial disputes or other post-divorce issues arise, a separate lawsuit must be filed, initially referred to the reconciliation department before proceeding to court.
Child Custody Regulations Under the Civil Personal Status Law
Article 13 of Cabinet Resolution No. 122 of 2023 establishes joint custody as the default arrangement, ensuring both parents share responsibility for the child. However, a parent may request sole custody if they can demonstrate that it serves the child’s best interests.
When determining custody arrangements, courts consider factors such as:
- The child’s overall welfare.
- The stability of each parent.
- The caregiving history of each parent.
- Any potential harm to the child’s well-being.
While divorce cases are exempt from mandatory mediation, disputes over custody or financial claims must first go through the Family Mediation Committee before being heard in court.
Conclusion
The UAE Civil Personal Status Law has modernized divorce proceedings for non-Muslims, making them faster, more straightforward, and less contentious. The introduction of unilateral divorce removes the need to establish fault, allowing spouses to separate with fewer legal obstacles. Additionally, the revised approach to financial settlements and child custody ensures that post-divorce matters are managed efficiently.
Despite these advancements, individuals undergoing divorce should seek legal counsel to navigate their rights and obligations effectively within the evolving legal landscape of the UAE.
