Custody & Guardianship in the UAE

Tim Elliot: Welcome to another edition of Lawgical, the UAE’s first legal podcast, courtesy of the Dubai-based law firm, HPL Yamalova & Plewka. My name’s Tim Elliot, socially distanced in JLT, high up at the firm’s offices, and as ever, I’m with the Managing Partner, Ludmila Yamalova. Good to see you.

Ludmila Yamalova: Great to see you, Tim.

Tim Elliot: In this edition of Lawgical, we’re considering, in as brief and user-friendly way as possible, the issue of custody and guardianship in the UAE. What happens when parents go their separate ways?

Now, we’ve considered custody and guardianship in previous podcasts on a number of occasions, Ludmila, but we’ve yet to specifically focus on this as a topic until today that is. Custody and guardianship of a child are outlined in Articles 142 to 177 of Federal Law Number 28 of 2005 on Personal Status. It is known as the Personal Status Law.

When do custody and guardianship really come into play?

When does it become a defining factor?

Ludmila Yamalova: In realistic terms, it really comes into the play when the parents of the children are going their separate ways. The separation can be done in one of two ways. It could just be an informal separation. In practical terms, the parents are living apart, but there is no formal divorce. Or, more frequently, it could be done by virtue of a formal divorce. Particularly when there is a formal divorce, the question of children and who has the right to be with children and who the children will be living with, and who is paying for them, obviously is a necessary element of the equation. This is really when the issue of custody and guardianship comes into play. Now, in the UAE, as you said, these kinds of issues are governed by the UAE Personal Status Law, which in turn is based on the principles of Sharia.

Tim Elliot: Right.

Ludmila Yamalova: This is why there is this differentiation between the concepts of custody and guardianship. Importantly, this difference between the two terms of custody and guardianship does not exist in many other countries that are not based on Sharia. For example, in the US or in Europe when there is a divorce, then custody and guardianship are really considered to be one and the same. It’s more about the differentiation between which parent has what percentage of the time with their children and which days, but usually, there is a joint custody/guardianship in the West.

It is more like the children will live X number of days with the mother and Y number of days with the father, but the parents are jointly responsible for the children’s wellbeing. They share responsibilities and the expense for the most part, depending on the jurisdiction, with regards to the children. That is in the West. But in the UAE, because the Personal Status Law is based on the principles of Sharia, so the two concepts of custody and guardianship are in fact two separate concepts. That is when they come into play, and in most cases, it is in the event of a divorce when the parents are no longer together, and they need to decide what happens to the children. That is when you look back at this law and figure out what the framework shall be for the parents moving forward.

Tim Elliot: Custody is generally with the mother or often with the mother, isn’t it?

Ludmila Yamalova: Yes. Custody in general is a concept that refers to physical possession of the child.

Tim Elliot: Right.

Ludmila Yamalova: So, in other words, who do the children end up living with? That is custody. That usually predicates that the children live with that custodial parent on a full-time basis, not here and there, but on a full-time basis. Whereas guardianship is more of a legal right and decision-making authority over the children. For example, there is no set definition of what that legal right or what the decision-making authority is, but generally speaking, it refers to schools, where children get to live, more important life decisions. In that case, it is the guardian of the children that has the right to make those decisions.

Tim Elliot: Crucially, financial support, is that the responsibility of the guardian?

Ludmila Yamalova: Yes. So, along with that comes the responsibility. With authority comes responsibility, and that is the financial support is with the guardian. Now, with regard to custody, this is the difference between custody and guardianship: Custody is the physical possession of the children, and guardianship is the legal authority over the children. Under the UAE Personal Status Law, custody is usually attached to the mother and, that is, for sons until the age of 11 and for daughters, it is until the age of 13. In other words, if you have boys and girls, depending on their age, some may actually end up living with the mother, and others may end up living with the father.

As I say that, in the UAE, the courts are quite cognizant and sympathetic to the family dynamics that might ensue as a result of these separations, and therefore, it is not uncommon for courts to issue decisions ultimately keeping the children together. It’s not uncommon to see children, boys in particular, that are over the age of 11, living with their mother along with the other siblings because the courts do have the authority to alter some of these age parameters with regard to custody. That is custody. There are some other requirements for the mother in order to maintain or continue to have custody.

In addition to her obvious right mind and such, the mother must be of the same religion as the child and also the mother must not be married to a man who is not related to the child unless the court decides otherwise. Again, there is a possibility for the court to decide otherwise, but this is something that is important to keep in mind, that if the woman decides to remarry, she may lose custody of the child. The father sometimes can also have custody for whatever reason. It could be because the mother is not available and not interested in taking care of the children. The father can be the custodian if he is actually married or he must have a woman relative living in the same house if there is a daughter involved.

The idea here is there should be a sister, mother, or perhaps a new wife, another female presence if the father is the custodian of a daughter. The same thing, having the same religion is also a requirement. That is as far as custody is concerned. With regard to guardianship, the guardianship is attached to the father, but with that also comes the responsibility of providing for the children. So, as part of this, (1) the father is responsible for all the living expenses, the schooling expenses, and all the other medical expenses of the children, and (2) obviously, upon divorce or separation, the father’s obligation to finance or sponsor the children must not downgrade the life of the family significantly.

In other words, if the family used to live in a big villa before, and now that they have gotten divorced, the father says, fine, I will pay for you to live in one bedroom with the two children, that cannot be the case. The father’s obligation to finance is basically based on several elements. (1) They have to be proportional to his earnings, and then (2) they must be more or less at the same level as the family enjoyed in terms of lifestyle prior to the separation. One more interesting element of this custodianship versus guardianship issue which is the custodian’s right to travel is, in fact, dependent on the guardian’s approval. This is technically speaking as per the law. In other words, the mother or the custodian of the children cannot just leave the country or travel just like that unless she has approval from the guardian.

Tim Elliot: In theory, the guardian would keep the passport of the child or the children?

Ludmila Yamalova: Yes. The law and the practice do allow for that. Yes. They allow for the guardian to be the custodian of the children’s passports and ultimately this ensures that the custodian gets the approval from the guardian, along with the passports, if they want to travel.

Tim Elliot: So, there is a very distinct and very stringent set of criteria here that you need to be aware of.

Ludmila Yamalova: Yes, for sure. It’s not as perhaps down the middle as it may be in other countries. So, for all those who are separating under the UAE law, that is something to keep in mind. But also, importantly, for all those non-Muslim couples, or even now under the new law even for perhaps Muslim couples who are married under the jurisdiction’s different laws, there may now be an option for them to opt for the laws of their country where their marriage was registered versus the UAE’s Personal Status Law.

This particular practice area of law is still in its infancy. The law is there, but how it is going to be implemented remains to be seen. But at least for all the non-Muslims, there is a choice between the laws, the UAE law, the Personal Status Law that differentiates between guardianship and custody, or the laws of the country where they were married.

Tim Elliot: That’s another episode of Lawgical, this time examining, albeit briefly, the topic of custody and guardianship, the differences and the criteria for both here in the United Arab Emirates. As ever, our legal expert on Lawgical, Ludmila Yamalova, the Managing Partner here at Yamalova & Plewka. Once again, thank you for your time.

Ludmila Yamalova: Thank you, Tim.

Tim Elliot: If you have a legal question you would like answered in a future episode of Lawgical, or if you would like a consultation with a qualified UAE experienced legal professional, contact LYLawyers.

This article is a transcription of the Lawgical with LYLAW podcast episode published on 4 May 2021.

Written by:

Ludmila Yamalova | HPL Yamalova & Plewka DMCC