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As expatriates opt for Sharia, family law is under review

Family law, which involves divorce and child custody, is being reviewed with an eye towards Sharia.

As UAE family lawyers advise individuals and act as counsel, we often deal with international or cross-border family matters. In the process, we experience all types of cross-cultural conflicts and pitfalls of jurisdictional disputes.

As many as 70 per cent of the cases filed with family law courts have an international element, such as the different nationalities of couples or their children, foreign marriage contract law, or assets located in different countries.

The cases vary from financial provision following divorce, dealing with foreign assets and resources, international enforcement of custody orders and provision for child custody and maintenance between different jurisdictions.

The UAE mandates that Sharia law is the primary legal justification on matters involving family legal issues, but the personal status law, which covers marriage, divorce and succession, states: "The law shall apply to all UAE nationals except where non-Muslim UAE nationals have special rules relating to their specific creed or sect." The law adds that Sharia will apply to expatriate residents as well, although they can choose recourse to applicable foreign law instead.

So why are non-Muslim expatriates choosing the UAE personal status law, which is based on Islamic Sharia, to resolve marital disputes?

According to Dubai Family Law Court, around 60 per cent of divorce cases among non-Muslims this year were processed according to the UAE law. Non-Muslim couples who want a divorce visit the department for mediation, where they are informed about their choice to get divorced according to the law in their country or opt for Emirati law.

These couples are usually warned by court staff about the costs involved in filing their cases under foreign laws, which includes much higher legal fees, translation costs, and endorsement and document-authentication fees. And in some cases, local judges resent the application of a foreign law with which they are not familiar.

The couple may either agree on certain terms dealing with child custody and their financial arrangement (which are then approved by the judge), or the judge may pass his own judgement according to UAE law following a family law trial. Such trials are usually lengthy, complicated and quite difficult even for the most experienced lawyers.

Sharia law that governs this process in the UAE follows the Maliki School, according to Article 2.3 of the personal status law, which states that rulings should be passed according to the doctrine of Imam Malik, followed by Imam Hanbal, Imam Shafie and Imam Abu Hanifa respectively. These distinct schools of thought were developed as localities tried to reconcile local customs and Islam as the Islamic empire expanded from Spain and North Africa in the west to China and Indonesia in the east.

Marriage and divorce are the most significant aspects of the UAE's Sharia-based personal status law, but there are other areas of family law which are included such as custody, guardianship and inheritance. The wide spectrum of issues pertaining to divorce cases of expatriates who opt for Sharia law has created complicated jurisdiction difficulties that have a serious effect on the parties involved in the case, who are often young children.

Courts in other jurisdictions are increasingly seeking UAE expert legal opinions on cross-border litigation over divorce and custody matters, which has aroused discussion in the UAE legal community. The questions of foreign judges are usually focused on Sharia laws that are applied to non-Muslims and how much they conform to different legal systems.

A few months ago, Dr Hadef Al Dhaheri, the UAE Minister of Justice, announced that the Federal National Council was reviewing ministry recommendations to refine the personal status law. The proposed amendments are expected to address issues such as inheritance rights of foreigners who leave behind property in the UAE, domestic violence, child custody and abandonment of senior citizens in hospital. The amendments are obviously already underway because lawyers have received a questionnaire seeking our comments on the amendments.

The complexities involved in acting for expatriate clients requires that judges and lawyers tackle, understand and advise on issues outside mainstream domestic family law. This is no doubt a matter that needs further attention from legislators and regulators in the UAE. International family law reforms can best go forward as practitioners and academics learn from and communicate with each other.

Debate on reforms and improvements to family law and practices should be encouraged. The Ministry of Justice's questionnaire is appreciated and we hope that the views of family law practitioners will be sought in a round-table discussion where both academics and lawyers provide input on the law.

 

Diana Hamade is an Emirati lawyer and legal consultant. She is the founder of International Advocate Legal Services in Dubai

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