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Abu Dhabi, UAEFriday 21 September 2018

UAE family matters Q&As: can my home country's laws be applied to my case?

A reader asks is she can regain custody of her child after divorcing her new husband and another asks about applying their home country's laws to a court hearing

I am a European Muslim married to a non-Muslim woman. We have two children together - aged 4 and 6 years old. I am now planning on divorcing my wife. Do I have the right to claim custody of both our children?

It is your right as per article No 145 of the UAE Personal Status Law No 28 of 2005 to claim custody of your children. If the child is less than five-years-old, the court has discretionary power to grant custody to the non-Muslim mother until the child reaches the age of five. If the child is above the age of five, the court by force of law has to give you custody. So you may claim the custody of your children, knowing that you may get custody for the younger child but custody of the elder child is subject to the absolute discretionary power of the court taking into account the child’s best interests. It is also advised that you prove to the court that there is another woman that could help you care for the children, preferably a relative.

I am a married European non-Muslim woman who has a child from a previous marriage. My ex-husband filed and won custody of our child because I remarried after divorcing him. As a result of that I fought with my current husband and filed a case against him. If I was to file a divorce case against him would I be able to earn custody of my child back?

Yes, definitely. Article No. 153 of the UAE Personal Status Law No. 28 of 2005 indicates that custody of a child shall be returned to the person who loses it after the reasons for forfeiting custody disappears. It is advised that you apply for custody only after the waiting period of the previous marriage expires and the divorce from your second husband becomes irrevocable.

I am a European expatriate who filed for divorce in the UAE courts. My lawyer did not inform me that I may have the laws of my home country applied in the First Instance court. As a result, I lost the case and have since filed an Appeal with another lawyer. May I request the Appeal court to apply my home country's laws knowing it was not applied before?

Although it is your right to apply your home country's law as per the article No. 1 of the UAE Personal Status Law No. 28 of 2005, it has to be used before the First Instance court and you do not have the right to do it in the Appeal court for the first time. The same concept was indicated by the Supreme court in cassation case No. 51/2011.

If you have a question for our legal consultant, email media@professionallawyer.me with the subject line "Family Matters".

Our family matters legal consultant

Name: Hassan Mohsen Elhais

Position: legal consultant with Al Rowaad Advocates and Legal Consultants.

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