UAE Law and Practice Contributed by: Hassan Elhais, Awatif Mohammad Shoqi Advocates & Legal Consultancy
3. Child Law 3.1 Choice of Jurisdiction
ing with one of its mediators. Since the purpose of this file with the department 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 settlement and that they would like to sign the agreement. Accordingly, the mediator may schedule another hearing where both parties may need to attend the hearing to sign the document. If the par - ties fail to reach an agreement, the department will issue a Non-Objection 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 guid - ance department for divorce, for non-Muslims, divorce takes place during the first session upon registration of the lawsuit before the court, with - out the need to refer the case for family guid - ance. 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, execution proceedings can be directly started pursuant to the agreement terms. Federal law No 28 of 2005 on Personal Status (applicable until 15 April 2025 for Muslims) made it mandatory to submit any divorce, custody or maintenance claim to the Family Guidance Department. However, in accordance with Fed - eral Decree-Law No 41 of 2024, effective from 16 April 2025, cases must be submitted to the court, which will then decide whether the case needs to go to family guidance. The new law may be applied to ongoing cases in the court that have not received a final order.
There are no separate jurisdictional grounds for commencement of proceedings applicable to children in the UAE. The jurisdictional grounds for divorce mentioned in 1.2 Choice of Juris- diction will also apply. The concept of domicile explained in 1.2 Choice of Jurisdiction also applies for children. 3.2 Living/Contact Arrangements and Child Maintenance In accordance with Federal Law No 28 of 2005 on Personal Status (applicable until 15 April 2025 for Muslims), when family disputes arise, the mother has custody of the children. Custody is taken to mean to keep a child safe, provide care, and manage daily needs. However, the right to manage a child’s affairs, such as educa - tion and travel, is granted to the guardian of the child. Custody is the physical safekeeping of the child (“physical” custody) whereas a guardian - ship is the legal or moral custody of the child. Previously, Article 148 of Federal law No 28 of 2005 stated that the responsibility for the health, property and education of a child must fall on the child’s father. The law was amended in October 2023 to grant responsibility for a child’s education (educational guardianship) to the mother, considering this to be is in the child’s best interests. If disagree - ments arise about what is best for the child, the parents can approach the Urgent Matters judge, who will decide after considering the guardian’s financial situation (while preserving the educa - tional guardianship of the mother). Federal law No 28 of 2005 on Personal Status (applicable until 15 April 2025 for Muslims) con - siders that the mother is the natural custodian of
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