Women’s rights in Marriage and Divorce based on Sharia Regulations and the UAE Personal Status Law

 

 

 

 

 

“Islam affords women their rightful status, and encourages them to work in all sectors, as long as they are afforded appropriate respect.”

 

HH Sheikh Zayed bin Sultan Al Nahyan
UAE Founder and Former Ruler of the Emirate of Abu Dhabi

 

The history of United Arab Emirates goes back in time thousands of years, far more than most of us might usually think, reaching the Bronze Age culture which existed around 2600-2000 BC. During that time, the domestication of camels and animals took place, leading to inland settlement and cultivation of crops.

Before the Union, which took place in 1971 and led to what the world knows today as United Arab Emirates, all the 7 emirates, were known as the Trucial States, a protectorate of the British Empire.

During those times, most disputes or conflicts were managed by the heads of the local tribes or unofficial judges, following the customary law. The primary source of law was Islam, alongside with the unwritten social conventions or Urf[1]. Sharia judges were specialized in matters regarding family disputes, whilst the customary law judges handled the criminal cases and other personal claims.

 On the 2nd of December 1971 the 7 Emirates decided to come together and proclaim the Union among them as a Federation. Moreover, on the same date, the Constitution of the UAE came into effect and was permanently accepted in May 1996.

 Dubai’s legal system is founded upon civil law principles and Islamic Sharia law, the latter constituting the guiding principle and source of law. As in most of the countries using civil law jurisdictions, in Dubai also, the legislation tends to be formulated into a number of major codes providing for general principles of law with significant amount of subsidiary legislation.

 Over the last 30 years, UAE was faced with an enormous influx of regional and international enterprises, which caused as well an exodus of international workers coming over from all around the world. This fast growth wouldn’t have been possible without the legal frame of the UAE and without the continuous work of improving it for the last 47 years.

 The negative international news of the last decade, starting with the 11th of September 2001, casted a bad light over the Middle East countries, with huge effects over human rights and most of all, over women rights and their position in the society. For most of the aliens looking to move over in the UAE, or even for those ones already living  here, the provision regarding the family matters from Islamic Sharia Law, remain a very sensitive subject, yet very important one. The fear of the unknown, mixed with a lot of dishonorable interpretations of the Islamic regulations and the Arab world, creates the perfect conditions for everyone to ignore the fact that women do have rights in Muslim countries, they are allowed to choose for themselves, to work along the man and to be part of the community they are living within.

 The constitution of the UAE, is the first legal instrument that stipulates in Chapter No.2, Article no. 2, that “’equality, social justice, the provision of safety and security and equality of opportunity for all citizens shall be the bases of the community. Mutual co-operation and respect shall be a firm bond between them”, without distinguishing between men and women and underlying that all UAE citizens have equal rights.

Furthermore, Article no.16 of the same chapter, sets out that whole society shall be held liable for protecting the childhood and motherhood, insisting once again on the very important role of the women and the fact that theirs role should be protected by the whole society, not only by the close circle of relatives and acquaintances.

There are other three major laws, regarding the family matters in the UAE: Federal Law No. 28 of 2005, also called Personal Status Law, Federal Law No. 11 of 1992, the Civil Procedure Code and Federal Law No. 5 of 1985, Civil Transactions Code.

The UAE’s Sharia-based Personal Status Law covers marriage, divorce and succession. The courts’ interpretation of family law provisions are based on Sharia regulations, which the UAE mandates is used as the primary legal justification on matters involving family law. The commentary of this law is heavily oriented and related to Sharia principles following the Imam Malik School.

Article no. 1 of the Personal Status Law specifies that the law will be applicable to non- Emiratis (people having another citizenship, other than the UAE one), unless they insist on choosing their own home country’s law. It also applies to all UAE citizens, excepting the case where non-Muslim citizens “have special rules relating to their community or confession”.

As per the UAE’s regulations, the only legal bond for a man and a woman to establish a relationship and form a family is marriage. Cohabitation for the unmarried couples is strictly forbidden and it is considered a criminal offence.

 Marriage itself, it is identified as a legal contract between a man and a woman, focusing on protecting the rights of the couple and their children. As in other jurisdictions, there are few conditions that have to be fulfilled by a couple in order to be able to get married.

 The first condition, and the most important of them all, is regarding the religion of the future spouses. If both groom and bride are non- Muslim, but they are both residents in the UAE, they can conclude their marriages at the consulate of their country in the UAE or at any temple or church as per their religion.

When both groom and bride are Muslims, their marriage will be conducted according to the Sharia provisions. If only the groom is Muslim, the bride has to be from what is called “Ahl Al- Kitaab” (which includes only Christians and Jewish), any other religion of the bride will not be taken into consideration, unless she will convert to Islam or to one of the religions recognized by the Islam (Christianity and Judaism).

While the law permits a Muslim man to marry a non-Muslim woman, it does not allow a Muslim woman to marry a non-Muslim man without proof of his conversion to Islam.

 The second condition is referring to the age of the future spouses. Whilst the age of majority in the UAE is 21 years old, the age of maturity is 18 years old and whoever matures before reaching the age of 18, will be allowed to marry by the authorization of the judge, after he will prove an interest.

 Another major condition is concerning the tutorship of the future bride to be. Pursuant to the provisions of Article no. 39, Personal Status Law, in order for the marriage contract to be valid, the tutor of the future bride, after having her consent will carry on with the procedures regarding the marriage. She will only sign the marriage contract in front of the religious authorized official.

Any concluded marriage that took place in the absence of the bride’s tutor will be invalid.

The institution of the tutorship is not a new demand for countries following the Sharia’s principles, like UAE. The main purpose of having such a condition to be followed upon marriage, is not to replace the consent of the woman by her tutor’s consent, but to make sure that she is protected and she will not be deceived into a marriage that wouldn’t suit her aspirations. Furthermore, the tutor has to be the father of the woman and if he is missing or is deceased, his duty will pass to the next agnates, in the following order: son, then brother, then uncle. The kinship and the affective relationship between the father and his daughter (or in any other case where the father cannot fulfill his duty) should represent enough proof that the tutor will act only in the best interest of the woman. The tutor can only be a sounded mind person and fully capacitated. As for those cases when a woman cannot have a tutor, the judge will be the one who will substitute the tutor’s position.

 Among the other conditions of the marriage contract stands the presence of two witnesses. Like the tutor, they have to be: Muslims, male, enjoying full capacity, sound minded and last but not least they have to hear and understand  the words pronounced by the contracting parties and have to be sure with no doubt that the aim of such words is marriage.

When a Muslim is marrying a Christian or a Jewish woman, they witnesses can be Christians or Jewish in accordance with the woman’s religion.

Once again, the condition referring to the witness presence is essential for validity of the marriage contract.

 Finally, the last mandatory condition regarding the marriage contract’s validity is represented by the dowry.

As mentioned in Article no. 49 of Personal Status Law, the dowry is the money or property offered by the husband to his wife for the purpose of marriage. In the second thesis of the same article it is mentioned that the law doesn’t prescribe a minimum amount for the dowry, but it does mention that the maximum limit of it will be subject to the Law of Dowries.

The meaning of the word dowry, from the English version of the Personal Status Law, somehow does not sum up the real and full meaning of it, which in Arabic is mahr. The term “dowry“ is sometimes incorrectly used to translate mahr, but mahr differs from dowries in many other cultures. A dowry traditionally refers to money or possessions a woman brings forth to the marriage, usually provided by her parents or family.

Mahr also can be classified as a form of “bride wealth“, being given directly to the bride and not to her parents. In fact, as her legal property, mahr establishes the bride’s financial independence from her parents and in many cases from her husband, who has no legal claims to his wife’s mahr (Article no. 50, Personal Status Law).

 The purpose of the dowry is to secure the financial independence of the woman and for this reason she is not allowed to waive it. Article no. 51.2, Personal Status Law, is mentioning that for those situation when the dowry’s amount is not determinate in the contract, it’s invalidly stated or it’s originally dismissed, the woman is still entitled to an equal dowry payable to a bride under the same circumstances. Dowry payments must be given priority over inheritance matters and must be considered conclusive. Any property that is owed to the deceased’s wife must be transferred to her before distributing the rest of the estate.

 When all the above mentioned conditions are fulfilled (religion, age, tutorship, witnesses presence and dowry), the marriage contract is valid, generating the effects specific to such an agreement and above all, a series of mutual rights among the spouses.

 Article no. 54, Personal Status Law, is stating the “mutual right and duties between spouses”, such as: the right to enjoy each other within the legally permitted limits; good treatment, mutual respect, kindness and protecting the welfare of the family; carrying to educate the children to ensure their good raising. All the provisions mentioned in Article no. 54 are in charge of both spouses. They have to respect each other, offer each other a good treatment, protect their family and care for their children and or their education. These categories of rights are not something new, either for Western legislations or for the ones in the Middle East, proving once again that marriage has to be a bond between man and woman from which both of them have a lot to gain and nothing to lose, regardless of where they decided to celebrate their marriage or to set out their family.

 Article no. 55, Personal Status Law, goes on listing a series of women’s rights which are due from her husband. She is entitled to receive alimony from her husband (after separation for three months only), she has the right to complete her education, to visit her family, to manage her personal properties and to be protected from any inflictions that would bring any prejudice to her body or mental health.

This specific article aims to highlight the fact that under Sharia provisions and following the Islam principles women do have rights, which are clearly comprised in the provision of the Personal Status Law. Women’s right are personal, they cannot be transferred or ceased. Every woman’s duty is to be aware of her legal rights and to take use of them whenever someone is trying to deprive her of them. Among the General Provisions regarding the effects of marriage, one of the woman’s rights mentioned above is reiterated. Article no. 62, Personal Status Law, mentions that women are free to dispose of their properties; the husband may not dispose of his wife’s property without having her consent and moreover, each of the spouses shall have separate financial assets. Second thesis of the same Article underlines that if one of the spouses is helping the other one in developing his/her own property, she/he will be entitled to claim his/hers share from the other upon divorce or death. Therefore, it is undoubtedly stated that both spouses have full rights of disposition over their personal assets, regardless their gender and furthermore they are granted compensation when helping the other spouse expanding his/hers property.

 Throughout the matrimony, the law provides maintenance due from the husband to the wife and children. Maintenance cost shall cover expenses such as food, clothing, a house, treatment and even a servant for the wife if she is used to have one in her parent’s house. The enumeration is not exhaustive, proving any type of maintenance in accordance to marital relations. However, maintenance cost has to be determined accordingly to the financial status of the maintainer and the economic situation of place and time, but it cannot be less than the sufficient limit, to provide food, cloth and safe shelter

  Taking into account the fact that over 9 million expats found home across all the seven Emirates of the UAE, lots of them wonder if foreign marriages are recognized in the UAE. In most of the cases, a marriage contract concluded abroad is valid in the UAE as well. In order to be recognized, the original marriage certificate/ marriage contract (the exact name of the document can vary from one country to another, what is important is that this document has to make full proof that marriage was in fact concluded and is recognized by the country where the marriage took place) must be legalized before Ministry of Foreign Affairs in the country where marriage took place, translated into Arabic by an official translator and then attested by Ministry of Justice. However, certain marriages are not recognized in the UAE, even if a valid marriage certificate was issued by the country in which the marriage took place, this being the case for: marriage between partners of the same sex, marriage between a Muslim woman and a non- Muslim man, marriage of a Muslim man with a woman of another religion other than Christian or Jewish.

Civil partnerships are recognized as long as they are entered into and attested abroad, provided that they are not one of the above mentioned unrecognized marriages.

 Even though marriages are meant to be forever, people do turnaround from oaths taken or life just happens and divorce comes in the picture. According to Article no. 99, Personal Status Law, divorce is the dissolution of the marriage contract in the legally prescribed form. A specific characteristics of the divorces in the UAE is that they can occur verbally or in writing. Even so, in case of a verbal divorce, the court must pass it by judgement, through witnesses or by oath.

As per Article no. 100, Personal Status Law, only the husband can file for a divorce or his empowered representative. The wife can ask for divorce only if she was granted the authority to do so, by inserting such a clause in the marriage contract.

Despite this, the law provides another solution for the wife to obtain her divorce. In Arabic is called Khula and its regulated by Article no. 110, Personal Status Law. Khula is a mutual agreement between the spouses to terminate their marriage. In order to have full effect of such an agreement, the wife has to pay a compensation to her husband.

 The grounds for divorce are listed between Article no. 110 to Article no. 135, Personal Status Law, as follows: divorce for defects (such as insanity, leprosy, impotence, vaginal occlusion etc.), divorce for failure to pay the prompt dowry, divorce for prejudice and dissension, divorce for non-maintenance, divorce for absence and loss, divorce for detention and divorce for Ila’a[2] and Zihar[3].

 Even though in the English version  of the Personal Status Law, the word “separation” it is used  instead of the word “divorce”,  separation known as in other jurisdictions does not exist in the UAE. Separation by court order as mention in the Personal Status Law, it is consider actually a divorce in the UAE.

 The above list of grounds for divorce is not exhaustive. They are rather limited for a woman applying for a divorce. There is no list of grounds for a man to apply for divorce. A Muslim man does not need a ground to divorce his wife, while a non-Muslim man must have a ground for divorce before the UAE courts.

In general, non-Muslims can also request for the law of their home country to be applied before the court. This is permissible under Article no.1, Personal Status Law. However, whenever the law of the parties’ home country fails to cover an aspect of the divorce, the courts hold discretion to apply UAE law. A foreign law will not be applied in the following cases: it is contrary to public order, morals or Islamic Sharia (Article 27, Civil Procedure Law), its effect cannot be determined (Article 28, Civil Procedure Law), its application is requested by a party who has dual nationality or whose nationality is unknown. (Article 24, Civil Procedure Law).

 Upon termination of marriage the waiting period starts, which is one of the main effects of divorce, along with the custody of the child/children and the sponsorship regarding the divorced wife.

The waiting period or Idda in Arabic represents the compulsory waiting period that the wife spends without being allowed to marry another man, following a divorce (when she has to wait 3 months) or in case of the husband’s death (when she has to wait for 4 month and 10 days). All these procedures might seem strange, but the reason behind it makes it perfectly understandable, because its purpose is to ensure that the father of any offspring produced after the cessation of marriage would be known. With nowadays technologies the child’s affiliation can be probated in many other ways as well, but Islam teachings were meant to help people from hundreds of years ago, when such methods where not known to human kind and establishing the child’s affiliation upon termination of marriage was impossible.

 The importance of Idda is reflected by its direct link to the alimony to which the wife is entitled. In accordance with the provisions stated in Personal Status Law, alimony is due from the husband to the wife in the following cases: when he denies having marital relations with her, when he abstains from supporting her or when she is in the waiting period. A woman waiting a mourning Idda is not allowed to receive alimony, but only to live in the conjugal residence.

In the UAE, once the waiting period is over, the husband does not owe any other financial support to his ex-wife. There are no provisions providing for sharing of assets, wealth or income on divorce which is the same case upon marriage.

Generally, each of the spouses will keep the assets and property held in their respective names. The court will divide assets such as bank accounts and shares that are in joint names equally or according to the percentages, unless there was evidence to the contrary in accordance with general civil laws.

 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.

[1] Urf is an Arabic Islamic term referring to the custom, or ‘knowledge’, of a given society. To be recognized in an Islamic society, ʿurf must be compatible with the Sharia law. When applied, it can lead to the deprecation or inoperability of a certain aspect of fiqh.

[2] Ila’a is when the husband swears not to have sexual intercourse with his wife for four month or more unless he goes back on his oath before the lapse of the four months; divorce in this case will be irrevocable

[3] Zihar is when a man says to his wife “I consider your body is as forbidden to me – sexually – as if you are a mother or a sister and so on. This is considered as another kind of “swear” that he will not have sexual intercourse with his wife.