Legal issues dealing with international law in general and the Middle East Islamic (Shari'a) laws in particular.
Friday, January 23, 2015
The Law of Marriage and Divorce in the United Arab Emirates
Prof. Gabriel Sawma
The United Arab Emirates (UAE) is a federation formed from tribally organized seven sheikhdoms, or emirates, along the southern coast of the Persian Gulf and the northwestern coast of the Gulf of Oman, they include: Abu Dhabi, Ajman, Dubai, Fujairah, Ras Al Khaima, Shrjah and Umm Al Quwain. That region was designated as ‘protectorate’ under the British Empire. In 1968, the British government announced its decision to grant independence to the seven sheikhdoms, together with Bahrain and Qatar. The rulers of the nine territories attempted to form a union of Arab emirates, but were unable to agree on terms of the union. Bahrain became independent in August, 1971 and Qatar in September of that year; the rest of seven sheikhdoms became fully independent on December 1, 1971. On December 2 of that year, six of them entered into a union called the United Arab Emirates (UAE). The seventh, Ras al-Khaimah, joined in early 1972. The emirates formed the Federal Supreme Council (FSC), the highest constitutional authority in the UAE and the highest legislative and executive authority. It is also the council that draws up the general policies and approves the various federal legislations. Sheikh Zayed bin Sultan al Nahyan, ruler of Abu Dhabi, was elected by the Federal Supreme Council as President of UAE, Sheikh Rashid bin Said al Maktoum of Dubai, became Prime Minister.
In 2004, the President died, his eldest son and Crown Prince, Khalifa bin Zayed Al Nahyan, succeeded him as Ruler of Abu Dhabi and President of the UAE. In January 2006, Sheikh Maktoum bin Rashid Al Maktoum passed away and was succeeded by his brother, Sheikh Mohammed bin Rashid Al Maktoum.
Under the constitution of 1971, each of the seven emirates has its own ruler; and each, reserves considerable powers, including control over mineral rights, mainly oil and gas, and revenues. In the years following their independence, federal power developed gradually by constitutional means. The constitution established the positions of President and Vice President, each serving five-year terms; a Council of Ministers, led by a Prime Minister, a supreme council of rulers; and a forty-member Federal National Council (FNC).
The Judicial System in UAE
UAE law is based on Islamic legal principles and influenced by English common law and Egyptian legal traditions. The UAE Constitution permits each emirate to structure its own judicial branch of government. As a result, there are federal as well as local courts. Except for Dubai and Ras Al Khaimah–who maintain their own judicial systems–the other five emirates have joined the federal system. Although the legal procedures and laws applicable to courts in the individual emirates are fairly similar, there are differences, particularly where a special law has been enacted and applied in a specific emirate.
Article 7 of the constitution states that Islamic sharia (law) shall be the main source of legislation in the UAE. Article 94 guarantees the independence of the judicial branch under the Supreme Court of the Union. Judges are appointed by the president and their decisions are also subject to review by the Federal Supreme Council (FSC). The Supreme Court is vested with the power of judicial review and original jurisdiction over federal-emirate and inter-emirate disputes. The constitution also provides for the establishment of union courts of First Instance to adjudicate civil, commercial, criminal, and administrative cases. Judgments of these courts can be appealed to the Court of Appeals, then to the Court of Cassation (Supreme Court).
Sharia courts work alongside the civil and criminal courts in the UAE. Their primary function is confined to civil matters between Muslims and have exclusive jurisdiction to hear matrimonial cases. The jurisdiction of the sharia courts was expanded in certain emirates such as Abu Dhabi to include serious criminal cases, labor and other commercial matters. Dubai also added the Dubai Court of Cassation.
Personal Status Law (PSL) in UAE
In 2005, the UAE enacted Federal Law No. 28 (hereinafter, Law) to govern matrimonial issues in what is called Matters of Personal Status or Personal Status Law (PSL). The provisions of the Law apply to all emirates and cover rules over marriage, divorce, guardianship, maintenance (Arabic nafaqa) and inheritance. Article 1 makes the Law applicable to all Muslim citizens of UAE, to non-Muslim citizens who “have no special laws specific to their own sect or ‘millah’ (denomination) and to non-citizens if they do not want to apply their own laws.
Article 2 of the Law states that the provisions of the law are based on Islamic “fiqh” (jurisprudence), and if no ruling exists in Islamic jurisprudence, a determination will be made in accordance with the “prevailing opinion in the Sunni Schools in the following ranking: Maliki, Hanbali, Shafi’i, and Hanafi followed by “general principles of the Islamic sharia and social justice.”
Marriage in the UAE must be registered and married couples are required to pass health examination. Article 49 requires two mature, rational, and witnessed by two Muslim male witnesses for the validity of the marriage between two Muslim couples, although Christian and Jewish witnesses are acceptable if one of the couple is Jew or Christian. The Law does allow a Muslim man to marry a woman who is Jew, or Christian (Art. 48). The same article prohibits Muslim women from marrying non-Muslim men.
Article 39 requires that the marriage of a woman over eighteen must be approved by a male guardian, otherwise, the marriage will be considered “null” and the couple will be separated. Article 21 requires the husband to be (kafu’an) or suitable in social and economic terms to the wife at the marriage; it allows a woman or her guardian to “request an annulment when suitability is lacking.” Article 21 also gives a judge, the right to disallow marriages in which the groom is “double or more” the age of the bride.
The Law requires the husband to offer “mahr” to the wife, which become her own property. The “mahr”, which is a major element in Islamic marriage contract, can be paid up front (muqaddam) or deferred (mu’akhar). According to Article 116, women who have not received their “mahr” (dowry) before the intercourse (ghayr al-dukhuli biha), as required by the contract, can have their marriage annulled by judicial order. The Law allows the couple to include legitimate stipulations written into the registered marital contract. Such stipulations may be considered bases for annulment or divorce.
The Law defines marriage as a “contract that permits enjoyment (sexual) by the spouses of each other legally.” (Art. 19), whose purpose is to “strengthen and raise a stable family under the guidance (ri’ayat) of the husband, on the basis that it guarantees for both of them the ability to fulfill its charge of affection and compassion.” Article 56 commands that a husband has the right to obedience from his wife “in accordance with custom.” Article 63 states that the husband provides maintenance to his wife, which includes food, clothing, medical treatment, and services. A wife may lose her maintenance if she does not sleep with her husband, or refuses to move to the marital home, or leaves the home, or prevents her husband from entering the marital home, or refuses to travel with her husband, all without legitimate excuses (Art. 71). The law defines family structure in patriarchal terms under the guardianship of the husband with the wife obedient to him, taking care of the home and raising his children.
Adultery is illegal in the UAE. In 2005, a sharia court in the emirate of Ras al-Khaimah sentenced a female domestic worker to 150 lashes for becoming pregnant outside marriage. The UAE has not ratified the United Nations Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (UN Convention against Torture).
The law permits a man to have as many as four wives at one time. He has the right to divorce his wife or wives, any time at his own will, without a judicial interference. Women by contrast, must obtain their divorce through a judicial order. In order for a woman to obtain a judicial divorce, she must prove that her husband has inflicted physical or moral harm upon her, has abandoned her for at least three months, or has not maintained ‘nafaqa’ and other financial benefits for her and for their children. Before such a divorce is obtained from the court, women are required by the federal law to go through “guidance” and “arbitration” in all the emirates. Articles 98 and 117 require the Committee of Family Guidance, followed by judge if the committee fails to reconcile the “dissent”. If the judge was unable to find a reconciliation, he will then appoint two other arbitrators for investigation and reconciliation within a period of ninety days, although the time “can be extended by court order,” as stated by Articles 118 and 119. The court has authority to appoint a third arbitrators if the previous ones could not reach a unanimous decision. After all these procedures have been consumed, the law places more obstacles before women seeking divorce on the basis of being harmed.
The Law states the situations in which a woman can obtain divorce without demonstrating harm. Article 100 allows a wife to seek divorce if the husband granted her power of attorney to divorce herself. Such permission is usually stated in the marriage contract, or granted by the husband to his wife at a later time during the marriage.
Article 110 allows a married woman to seek judicial divorce through khul’. This means that she relinquishes her right to the mahr. . The law gives divorced fathers custody of female children above the age of 13 and male children above the age of 11.
It is important to note that a non-Muslim woman married to a Muslim man loses custody of her children in case of divorce when they reach the age of five, unless the judge rules otherwise, (Art. 145).
Recognition of UAE divorce in USA
A divorce obtained in the UAE without service of notice to the absent defendant is considered void and not recognized by the U.S. courts. Under the principle of estoppel, many jurisdictions will prohibit the spouse who consented to the divorce from attacking it later.
A divorce decree obtained in the UAE generally is recognized in a state court in the United States on the basis of a doctrine called “comity”, provided that both parties to the divorce receive adequate notice, i.e. service of process and, generally, provided one of the parties was a domiciliary in the UAE at the time of the divorce. Under the doctrine of “comity”, a divorce obtained in the UAE under the circumstances described above receives “full faith and credit” in the United States. A full faith and credit may be given to an ex parte divorce (where one party to the divorce action is absent) decree, states usually consider the jurisdictional basis upon which the foreign decree is founded and may withhold recognition and enforcement if not satisfied regarding domicile in the foreign country. If neither party to a divorce obtained domiciliary in the foreign country, such a divorce will be considered invalid.
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East Background, and a recognized authority on Islamic law of marriage, divorce, and custody of children. Professor of Middle East Constitutional Law and Islamic law. Expert Consultant on Islamic divorce in U.S. Courts and Canada. Admitted to the Lebanese Bar Association. Former Associate Member of the New York Bar Association and the American Bar Association.
Professor Sawma’s experience in Islamic and Middle East laws comes from his study and practice of law in the Middle East. Islamic family law is part of the curriculum at the Lebanese University School of Law from which he graduated with honor.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe and the Middle East. He wrote affidavits in connection with Islamic divorce to immigration authorities, Federal Courts and State Family Courts throughout the United States. Travelled extensively to Saudi Arabia and the Arabian Gulf region and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad. He speaks, reads and writes Arabic, French, English, and few other languages spoken in the Middle East.
Gabriel Sawma, Lebanese attorney, born in Lebanon and lawyer with Middle East background, dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari'a law.
Professor of Middle East Constitutional Law,Islamic Law, Arabic and Arab Culture and Civilization at Fairleigh Dickinson University, NJ. Professor of Islamic Finance at the University of Liverpool, UK.
Expert consultant on Middle East affairs, terrorism and authority on Islamic Shari'a, including Islamic marriage contracts, the mahr, and Islamic divorce in USA, http://www.islamicdivorceinusa.com
Expert consultant on Islamic banking and finance.
Expert consultant on Islamic inheritance and child custody.
Admitted to the Lebanese Bar Association of Beirut. Associate Member of The New York State Bar Association, and the American Bar Associations. Wrote extensively on Islamic and Hindu divorces in USA.
Visit our website at http://www.islamicdivorceinusa.com