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UAE: Can a Muslim woman initiate divorce proceedings against her husband?

Who takes custody of kids under 18 if Muslim mother initiates divorce proceedings?

Published: Sun 28 Apr 2024, 8:43 AM

Updated: Sun 28 Apr 2024, 10:16 PM

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Question: I am a Muslim woman looking to initiate divorce proceedings against my husband. We have three children, all under the age of 18. I see no reconciliation in our marriage, but my husband refuses to initiate the divorce. If I initiate it as a Muslim woman, what are my rights? Who will get our children's custody?

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Answer: Pursuant to your queries, it is assumed that you and your husband are residents of the UAE. Therefore, the provisions of Federal Law No. 28 of 2005 on Personal Status, amended by virtue of Federal Decree Law No. 8 dated 29/08/ 2019, Federal Decree Law No. 5 dated 25/08/2020 and Federal Decree Law No. 29 dated 27/09/2020 are applicable.

As per Article 100 of the UAE Personal Status Law, a Muslim woman may initiate divorce proceedings against her husband. The law also mentioned that she may obtain a Khul, allowing her to initiate divorce from her husband, where she relinquishes her rights in marriage except to maintenance and custody of children.

Article 100 of the UAE Personal Status Law reads as:

“Divorce shall be initiated either by the husband or anyone acting on his behalf by virtue of a special power of attorney, or by the wife or anyone acting on her behalf by virtue of a special power of attorney, according to what was agreed upon in the marriage contract, and it must be documented according to the procedures followed in the court.

The divorce shall be established before the judge by evidence given by two witnesses testify, or by avowal, and the judge shall issue his ruling after verifying the fulfilment of either of said two conditions.

Divorce shall be deemed to be dated on the date of avowal, unless a previous date is established to the court, and the consequences of divorce by avowal shall be governed by Sharia rules.”

Article 110 of the UAE Personal Status Law (divorce by agreement. – Khul) reads as

“1. Divorce for consideration is a contract between the spouses whereby they agree to terminate the contract of marriage against consideration to be paid by the wife or by another person.

2. The amount to be paid as a consideration shall be governed by the same rules as dowry but it is not allowed to agree on forfeiture of the children’s alimony or their fostering

3. should the consideration to be paid in case of divorce by agreement be not validly determined, divorce shall occur and the husband shall be entitled to the dowry.

4. Khul is rescission.

5. By exception to the provision of clause 1 of this Article, where the husband is unduly obstinate in his rejection and it was feared not to observe God's will, the judge shall decide the "Mukhala'a" (divorce) against an adequate consideration.”

Furthermore, once the divorce is pronounced, a Personal Status court in the UAE which has jurisdiction to hear personal matters may issue orders related to a woman’s alimony, custody of children, maintenance etc. This is in accordance with Article 107 of the UAE Personal Status Law,

Under Article 67 of the UAE Personal Status Law, a Muslim woman may stake a claim to maintenance during the divorce proceedings. Any claims of maintenance from a husband need to be within three years preceding filing of the maintenance case.

A Muslim woman may also claim for interim and/or maintenance case while the divorce is pending.

Furthermore, a Muslim woman may claim custody of the child. She may have custody of her son until the age of 11, and 13 for a daughter, or as decided by the court keeping in mind the interest of the child/children.

Article 156(1) of the UAE Personal Status Law states, “1- The right of women to fosterage of a child shall end upon his reaching the age of eleven years, if a male, and thirteen years, if a female, unless the court deems that extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest.

It is the responsibility of a husband to provide maintenance to his children. Maintenance includes food, shelter, clothing, and education. A husband is liable to maintain his daughter until she is married and his son until he attains the age where the majority of people are employed. This is in accordance with 78 (1) of the UAE Personal Status Law, which states, “Alimony of the small child who has no financial resources is on his father until the marriage of the girl or until the boy reaches the age at which his fellow-mates earn their living unless he is a student continuing his studies with normal success.”

Based on the aforementioned provisions of law, you as a Muslim woman may initiate regular divorce proceedings against your husband in the Personal Status Court which has jurisdiction in the UAE and you may in the same case or a separate case also claim for maintenance for yourself and children (including interim maintenance) along with custody of your children.

Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.

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