Abu Dhabi's new civil court laws explained: child custody

New civil family laws in the capital prioritise the well-being of any children involved in divorce cases

Abu Dhabi's new divorce laws for expats and Muslims from non GCC countries benefit fathers, mothers and children. Sarah Dea/The National

New civil family laws announced last year in Abu Dhabi are changing the way children of divorced parents are treated once the case is finalised.

Judges will, for the first time, grant equal custody rights to both non-Muslim parents should they decide to no longer stay married.

So how have things changed? The National explains.

What laws did expats and Muslims from non-GCC countries follow before?

Previously, in a divorce, only the mother would have custody of the children, until they reached puberty, which was classified as 11 years old for girls, and 13 years old for boys.

However, women who remarry would automatically lose custody of the children regardless of their age.

Under federal law, which is followed by Muslims from GCC countries, the mother is the custodian and the father is the guardian, caring for all the financial needs of a child.

“It is mainly when the mother's custody is rendered no longer valid, so [once the children hit puberty] the mother's custody will be dismissed and that means that the children will be given to the father," said UAE lawyer from Attorneys at Law, Diana Hamade.

Ms Hamade explained that the law that previously applied to non-Muslims would have automatically given all children to the mother so that she could care for them through childhood, but they could just as easily have been taken from her should her home life change.

"The mother would also lose custody if she is rendered unfit, sick, not mentally fit and, of course, in the event of getting married."

This remains the case with Sharia, which Emiratis and a majority of Muslims are subject to.

How do the new Civil Family Court laws differ?

The new civil law for non-Muslims was announced in November and will provide "a flexible and advanced judicial mechanism for the determination of personal status disputes for non-Muslims”, the Abu Dhabi Judicial Department said.

Under the new law, spouses can divorce without needing to prove harm was done in the marriage, nor are they required to undergo any mediation before having their request to terminate the marriage granted.

Joint and equal custody of children will be automatically granted to parents after divorce, with procedures in place to settle disputes.

“It is heart-warming because what we had previously was heart-breaking,” Ms Hamade said.

“This is the first civil law in terms of family law. We always had our federal law 28 of 2005, which is based on Sharia, where the roles of parents are separated. But before the new law, there was not a single law that unites a father and a mother.

“The Abu Dhabi law is a civil law that is not based on any religion or sect or even a philosophy. It's mainly based on rules that are applied worldwide to families in terms of marriage, divorce, separation, finances.”

The new law applies only to non-Muslims and Muslims from countries that do not apply Sharia, such as the US and the UK.

It applies only in Abu Dhabi with Dubai having separate laws and the rest of the emirates following federal laws, which are Sharia-based.

How are fathers benefiting from these changes?

The civil law means that fathers will get to spend more time with their children.

“What the new Abu Dhabi non-Muslim family law does, is provide a default starting position of shared care between the parents, and doesn't allow for discrimination on the grounds of gender between parties," said Byron James, a partner at Expatriate Law.

"This is quite different to the previous applicable law. The intention of the Abu Dhabi judicial department seems to be to remove the conflict from those divorcing that arises out of agreeing child arrangements on separation by providing them with a starting point of shared care.”

How the law will be implemented and applied, he said, remains to be seen.

“But it's obviously a very reassuring starting point, particularly for fathers, because under the previous local law it was often quite difficult for fathers to achieve regular overnight time with their children.

“As a result this is a welcome development, perhaps especially for fathers but ultimately both parents.

"The conflict arising from child arrangements on separation will be reduced and fathers’ time with their children will be more protected," he said.

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