Legal issues dealing with international law in general and the Middle East Islamic (Shari'a) laws in particular.
Friday, January 23, 2015
WHAT AMERICAN WOMEN SHOULD KNOW ABOUT DIVORCE LAW IN UAE
Prof. Gabriel Sawma
The law of marriage and divorce in the United Arab Emirates (UAE) is governed by Federal law no. 28, 2005, known as Personal Status Law. Article 1 states the following:
“The provisions of this Law shall apply on citizens of the United Arab Emirates States unless non-Muslims among them have special provisions applicable to their community or confession. They shall equally apply to non-citizens unless of them asks for the application of his law.”
This means the UAE law allows a couple who have marital conflict to seek the application of their own laws before the court. This process can be easily applicable when both parties of the conflict have same nationality. In such a situation both parties may seek the application of the law at the time the marriage was contracted as stated in Article 12(1) of the UAE Civil Code, 1985.
The case becomes complicated when each party to the marital conflict has different nationality. The Personal Status Law does not address this topic; however, we can find a remedy in the Civil Code of 1985. Article 13(1) of the Code states the following:
“The law of the state of which the husband is a national at the time the marriage is contracted shall apply to the effects on personal status, and the effects with regard to property, resulting from the contracting of the marriage.”
It is important to note that U.S. citizens who marry UAE should know that the law of the husband applies to the rules of divorce, not the law of the wife’s state. This is confirmed by article 14 of the Civil Code which states that “. . . if one of the spouses is a national at the time the marriage is contracted, the law of the United Arab Emirates alone shall apply. . .”
It is also important to note that the Civil Code of the United Arab Emirates is based on the principles of Islamic Sharia. Thus a woman marrying a UAE national will be subject to the rules of Islamic law in matters related to divorce and custody of the children, even though she kept her non-Muslim faith during the marriage. This topic will be covered by another article on this website.
MUSLIM MAN’S ABILITY TO MARRY MORE THAN ONE WOMAN
The Personal Status Law
of the United Arab Emirates does not prohibit a Muslim man from marrying a
Christian or Jewish woman as we mentioned earlier. But on the other hand, a Muslim man is
allowed to marry up to four wives at the same time. This means that, even
though he is married to a Christian or Jewish wife, he can still marry up to
CHILDREN BORN OF SUCH MARRIAGES ARE CONSIDERED MUSLIMS
Under the law of Islam,
children born of mixed marriages, involving a Muslim man and non-Muslim woman
are considered Muslims. The religion of children born of a Muslim father,
always follow the religion of the father. It does not matter even if the child
is baptized in the Christian faith, he is still and will always be regarded as
Muslim, and is governed by Islamic Shari’a.
CUSTODY OF THE CHILDREN IN THE EVENT OF DIVORCE
Marriages between UAE
nationals and foreign-born wives are more likely to end in divorce. According
to some accounts, the UAE has the highest divorce rate in the Gulf region; in
2005, it reached 46 percent. While women, who are UAE nationals, receive
financial aid from the government after divorce, women are not eligible for
In the event of divorce,
or death of the husband, a Christian or Jewish woman married to a UAE national,
the wife will lose her custody to her children. This is based on Islamic
jurisprudence which says, a person outside the religion of Islam is not qualified
to have custody of Muslim children.
WIFE CANNOT LEAVE THE COUNTRY WITH THE CHILDREN
WITHOUT PERMISSION OF THE HUSBAND
Foreign women married to
national citizens are not free to leave the country with their children; their
children must remain in the UAE unless the court decides otherwise. Islamic
Shari’a does not allow a divorce wife to travel outside the country with the
children without permission of the husband or a court order. If the husband is
dead, the wife can leave the country with the children only if the guardian of
the children, who has been appointed by the father before his death, or a
guardian who has been appointed by a judge, permits the wife to travel with the
children. If such permission is not granted, the wife might have to leave the country
without the children. U.S. law cannot force a foreign country to bring the
children back to the United States.
A HUSBAND MARRIED TO A FOREIGN WOMAN MAY DECIDE TO
TAKE THE CHILDREN TO HIS COUNTRY AND STAY THERE
A Christian or Jewish
woman who is married to a Muslim citizen of the UAE should know that if the
husband travels with the children to his country and decides to stay there with
the children, she is not afforded protection of U.S. law to bring the children
back to the United States. For example, if the husband, who is national of UAE
travels with his wife and their children to his country, and then chooses to
stay in UAE with the children, the wife may not be able to bring her children
back to the United States. The law of UAE will not allow the wife to bring back
her children to the U.S. without permission of the husband.
Furthermore, she may not
be able to stay in the United Arab Emirates since her status as resident is
based on her husband’s sponsorship. If the husband withdraws his sponsorship,
she would be subject to deportation without being able to bring her children
with her. There is no guarantee that she will be able to obtain an entry visa
to that country in the future.
CONVERSION OF ONE SPOUSE TO ISLAM
Under Islamic Shari’a, if
a non-Muslim woman married to a non-Muslim man decides to convert to Islam, the
marriage is suspended until her husband converts too. In theory, she could
leave the non-Muslim husband and marry a Muslim man. This is perfectly legal
under Islamic law, and it has a reference in the Qur’an, which reads: “O ye who
believe [Muslims], when there come to you believing women refugees, examine
them. Allah knows best as to their faith; if you ascertain that they are
believers [Muslims], then do not send them back to unbelievers [non-Muslims].
They are not lawful [wives] for the unbelievers, nor are [the unbelievers]
lawful [husbands] for them.” (Qur’an 60: 10)
If a non-Muslim husband
converts to Islam, a new marriage is not needed. He can marry up to four wives
at one time.
Under the rules of
Islamic Shari’a, a daughter inherits half of her brother’s shares. When a
husband dies, the widow inherits one-eighth of his assets if he has children.
If he dies childless, the wife inherits one-fourth. The rest of his assets are
passed on to the husband’s closest relatives. If no son is born of the
marriage, daughters alone cannot inherit all the assets of their parents; in
such a case, part of the assets goes to the sons of the father’s brother.
However, a non-Muslim
woman marrying a Muslim man from the United Arab Emirates does not inherit
anything if the husband dies unless she is mentioned in his will as a
beneficiary. Such a will cannot be valid if its purpose is to deny a legitimate
person from getting his or her share under Islamic law.
DISTRIBUTION OF ASSETS AT THE DIVORCE
In the event of divorce,
the wife does not share in the marital assets. The only amount of money she
receives is the mahr as stipulated in the marriage contract. It is therefore
very important for a woman who is embarking on marrying a male citizen of the
United Arab Emirates to pay attention to the amount of mahr when she signs the
marriage contract. Islamic Shari’a does not entitle the wife to share the
assets of her husband no matter how diligent she was in protecting and
promoting the family business.
You have to remember too
that the husband is allowed to marry three other women. This tactic is often
used by the husband to avoid divorcing his wife, since divorcing her would make
him liable to the mahr. On the other
hand, if the wife seeks divorce through khul’, she forfeits her mahr.
I suggest that a woman
looking to marry a Muslim man to do further research about her rights and
obligations under Islamic law. For more on this topic please read our articles listed on this website: http://www.uaedivorceinusa.com
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, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada. Expert Consultant on Hindu divorce in U.S. courts and Iranian divorce in USA.
Admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled numerous times to Saudi Arabia, Kuwait, Bahrain, Qatar and the Arabian Gulf States, Jordan, Syria, Palestine, and wrote extensively on Islamic and Hindu divorces, custody of children in USA and abroad, and abduction of children to Muslim countries.
Speaks, reads and writes several languages including Arabic, English, French and others
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