UAE Law and Practice Contributed by: Awatif Al Khouri and Hassan Elhais, Awatif Mohammad Shoqi Advocates & Legal Consultancy
department schedules a hearing with one of its media ‑ tors. Since the purpose of this file with the depart ‑ ment is to explore the possibility of a mutual divorce agreement, the parties may inform the mediator that they have agreed on certain terms for divorce settle ‑ ment and that they would like to sign the agreement. Accordingly, the mediator may schedule another hear ‑ ing where both parties may need to attend the hearing to sign the document. If the parties fail to reach an agreement, the department will issue a Non-Objec ‑ tion Certificate, which gives the parties the right to apply to the court for their claims, such as divorce, maintenance, custody and visitation. Whereas Muslim couples mandatorily need to go through the Family Guidance department for divorce, for non-Muslims, divorce takes place during the first session upon registration of the lawsuit before the court, without the need to refer the case for family guidance. Non- Muslims still need to go through the family guidance process for other claims, such as maintenance. If disputes arise once the agreement is signed, execu ‑ tion proceedings can be directly started pursuant to the agreement terms. There are no separate jurisdictional grounds for com ‑ mencement of proceedings applicable to children in the UAE. The jurisdictional grounds for divorce mentioned in 1.2 Choice of Jurisdiction in Divorce Proceedings will also apply. The concept of domicile explained in 1.2 Choice of Jurisdiction in Divorce Proceedings also applies for children. 3.2 Living/Contact Arrangements and Child Maintenance In accordance with Federal Decree-Law No. 41 of 2024 on the Issuance of the Personal Status Law, when family disputes arise, the mother has custody of the children. Custody is taken to mean keeping a child safe, providing care and managing daily needs. However, the right to manage a child’s affairs, such as education and travel, is granted to the guardian of the child. Custody is the physical safekeeping of the child, 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings
whereas guardianship is the legal or moral custody of the child. Federal Decree-Law No. 41 of 2024 pro ‑ vides for custody and guardianship of children. Under Article 112 of the Decree-Law, the mother of the chil ‑ dren is generally provided custody over the children, which entails the day-to-day care and responsibilities of the children such as food, clothing, health, well ‑ being, etc. Consequently, she has the physical cus ‑ tody of the children. The father, on the other hand, is granted guardianship over the children. This includes the overall supervision of the affairs of the children. However, the Decree-Law also particularly specifies that, notwithstanding the aforesaid guardianship pro ‑ vision, the mother shall have education guardianship of the child under custody, in a manner that achieves the best interests of the child. The father also has the financial responsibility for the children, which includes providing for their food, clothing, shelter, education, healthcare, etc. Under Article 123 of Federal Decree- Law No. 41 of 2024, mothers have custody over the children until the age of 18, regardless of the gender of the children, unless she is disqualified from exercising the right as per the prescribed law. Nevertheless, as per Article 122, once the children turn 15, they have the right to choose between the parents, provided that the court does not decide that such choice is against the best interests of the children. Federal Decree-Law No. 41 of 2022 (applicable for non-Muslims in all Emirates except Abu Dhabi) and Abu Dhabi Law No. 14 of 2021 (applicable for non- Muslims in Abu Dhabi) provide for custody to be shared between the parents, with Federal Decree- Law No. 41 of 2022 (applicable for non-Muslims in all Emirates except Abu Dhabi) providing for joint custody until the age of 18 and Abu Dhabi Law No. 14 of 2021 (applicable for non-Muslims in Abu Dhabi) providing joint custody until the age of 16. However, joint custody can be reconsidered if one parent pos ‑ es a threat to the child or fails to fulfil their custodial duties. In such cases, the court can modify custody arrangements, always prioritising the child’s best interests. When parents disagree on custody matters, either one can submit an application to the court for resolution, ensuring that the child’s best interests are the primary consideration. Either parent may request removal of the other from the joint custody arrange ‑ ment, temporarily or permanently, for reasons such
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