Family Law Case Study in the UAE
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Custody laws in the United Arab Emirates are mainly transcribed in Federal Law No. 28 of the year 2005 (UAE Personal Affairs Law), and I will refer to these articles in covering the Court’s discretion in family law issues. A recent custody case at our firm shows some of the reasons behind a final decision proffered by the Court of Cassation. A married couple living agreed to a mutual divorce in 2004, and filed accordingly in the Family Court.
The couple had a daughter together, and they decided to write up an agreement that gave the mother custody of the girl until she reached the age of 7 years. At such point in time, the daughter would automatically go to her father, the guardian, and he would be considered both the guardian and the custodian. When the daughter reached 7 years of age, the mother refused to hand her over to the father. The father filed a claim in court to seek the enforcement of their original agreement, by which he would gain custody of the child. The mother objected to the agreement’s enforcement and sued accordingly.
After the agreement was originally made in 2004, new legislation was passed in the area of family law in 2005. The most relevant change of law was Article 156 of the Personal Affairs Law, which states that the custody of a child shall go to the mother, until 11 years of age for a boy and 13 years of age for a girl. In that same clause, the law sets out that this circumstance can change if the court determines something else is best for the child.
The mother made claims under three different laws. Under Article 110(2), in a divorce, if both parties cannot agree on the expenses for the child or the child custody, then they cannot agree to withdraw the custody itself. In accordance with Article 156, mentioned above, the mother claimed the agreement was unenforceable. Lastly, the mother claimed the agreement should be executed and the child should forcefully be taken from the father by the court, in accordance with Article 158. The Court of First Instance agreed with the mother and found that the agreement was unenforceable due to current federal legislation, and that the daughter would stay with the mother until she reached the age of 13 years. The husband successfully appealed the decision in the Court of Appeals, and was consequently awarded custody of his daughter. Following this decision, the wife appealed to the Court of Cassation, which is similar to Western society’s Supreme Court. A decision from the Court of Cassation is final and cannot be further appealed.
The final decision in the Court of Cassation upheld the judgment of the Court of Appeals, meaning the father was awarded custody of the child consistent with the agreement made by the parents in 2004. Although there was current legislation that contradicted the terms of the agreement, it is important to note that the Court held this legislation was not retroactive. According to the Court, the agreement was entered into amicably and mutually and should not be overturned. The Court found that no circumstances had changed that would render it in the child’s best interests to stay with the mother, and therefore there was no obstacle in granting the father custodianship.
This decision rendered by the Court of Cassation took into account what was best for the child in choosing to make the law non-retroactive. Though current legislation is not normally applied to agreements made before the passing of the law, the Court kept the door open to apply it retroactively if there were any changed circumstances. For instance, if in the case mentioned above, at the time the agreement was to be executed it was in the child’s best interests to stay with the mother, the Court would have applied current legislation or even extended the mother’s custodianship to past 13 years of age for the daughter. This case shows the great deal of detail of discretion awarded to Courts in deciding family law issues.
ABOUT THE AUTHOR: Hassan Elhais
After qualifying as a lawyer in his native Egypt within the fields of Criminal and Public Law, Mr. Mohsen Elhais has been practicing in Dubai for the past seven years. Working exclusively with Al Rowaad Advocates, Hassan is an effective leader of the company, the spokesperson and driving force. Hassan has a strong ethical stance with regards to the place of the law firm and its work on behalf of the client, from clarity on the legal process through to the fee system.
Specializing in the drafting of all statement of claim, memos and consultation with regards to all kind of litigation, Hassan has worked his way through the ranks of Al Rowaad Advocates from joining as Legal Advisor to his current role as Managing Partner. Member of Egypt Bar Association; Member of International Bar Association; and Recommended Lawyer of Embassy of United States in Abu Dhabi.
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More information about Al Rowaad Advocates & Legal Consultancy
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 technical or legal advice on the information provided and related topics, please contact the author.
After the agreement was originally made in 2004, new legislation was passed in the area of family law in 2005. The most relevant change of law was Article 156 of the Personal Affairs Law, which states that the custody of a child shall go to the mother, until 11 years of age for a boy and 13 years of age for a girl. In that same clause, the law sets out that this circumstance can change if the court determines something else is best for the child.
The mother made claims under three different laws. Under Article 110(2), in a divorce, if both parties cannot agree on the expenses for the child or the child custody, then they cannot agree to withdraw the custody itself. In accordance with Article 156, mentioned above, the mother claimed the agreement was unenforceable. Lastly, the mother claimed the agreement should be executed and the child should forcefully be taken from the father by the court, in accordance with Article 158. The Court of First Instance agreed with the mother and found that the agreement was unenforceable due to current federal legislation, and that the daughter would stay with the mother until she reached the age of 13 years. The husband successfully appealed the decision in the Court of Appeals, and was consequently awarded custody of his daughter. Following this decision, the wife appealed to the Court of Cassation, which is similar to Western society’s Supreme Court. A decision from the Court of Cassation is final and cannot be further appealed.
The final decision in the Court of Cassation upheld the judgment of the Court of Appeals, meaning the father was awarded custody of the child consistent with the agreement made by the parents in 2004. Although there was current legislation that contradicted the terms of the agreement, it is important to note that the Court held this legislation was not retroactive. According to the Court, the agreement was entered into amicably and mutually and should not be overturned. The Court found that no circumstances had changed that would render it in the child’s best interests to stay with the mother, and therefore there was no obstacle in granting the father custodianship.
This decision rendered by the Court of Cassation took into account what was best for the child in choosing to make the law non-retroactive. Though current legislation is not normally applied to agreements made before the passing of the law, the Court kept the door open to apply it retroactively if there were any changed circumstances. For instance, if in the case mentioned above, at the time the agreement was to be executed it was in the child’s best interests to stay with the mother, the Court would have applied current legislation or even extended the mother’s custodianship to past 13 years of age for the daughter. This case shows the great deal of detail of discretion awarded to Courts in deciding family law issues.
ABOUT THE AUTHOR: Hassan Elhais
After qualifying as a lawyer in his native Egypt within the fields of Criminal and Public Law, Mr. Mohsen Elhais has been practicing in Dubai for the past seven years. Working exclusively with Al Rowaad Advocates, Hassan is an effective leader of the company, the spokesperson and driving force. Hassan has a strong ethical stance with regards to the place of the law firm and its work on behalf of the client, from clarity on the legal process through to the fee system.
Specializing in the drafting of all statement of claim, memos and consultation with regards to all kind of litigation, Hassan has worked his way through the ranks of Al Rowaad Advocates from joining as Legal Advisor to his current role as Managing Partner. Member of Egypt Bar Association; Member of International Bar Association; and Recommended Lawyer of Embassy of United States in Abu Dhabi.
Copyright Al Rowaad Advocates & Legal Consultancy
More information about Al Rowaad Advocates & Legal Consultancy
View all articles published by Al Rowaad Advocates & Legal Consultancy
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 technical or legal advice on the information provided and related topics, please contact the author.
