DIVORCE UNDER SHARIA IN THE UNITED ARAB EMIRATES
In the UAE, divorce cases may be adjudicated in accordance with a foreign law, such as the law of the spouses’ home country or the law which governs the marriage contract. However, the application of Sharia principles is mandatory where one of the spouses is a Muslim. The statutes regulating divorce under Sharia principles are the Federal Law No. 28 of 2005 (“Personal Status Law”) and the Federal Law No. 5 of 1985.
1) Declaring Talaq
For Muslim husbands, divorce may be ensued by declaring “Talaq”, (the Arabic term translating to “I divorce you”). Declaring Talaq, even if done in a frivolous or uncertain manner, will be cause for legal repercussions which will later be enforced by the parties. The first and second time Talaq is declared, the husband is allowed a three-month waiting period to reconcile with his wife, during which the wife must remain single, this is known as “Iddah”. Should the wife be pregnant, the waiting period will not conclude until after she has given birth. Iddah also provides the parties with the opportunity to reflect and decide whether the marriage may be reconciliated. It must be noted that during this period, the husband remains liable towards his wife and therefore, he must continue to provide her with his support with regard to expenses and honouring the financial obligations imposed on him.
However, if the Iddah elapses without reconciliation between the spouses, the husband’s right to reunite with his wife will be lost and the marriage will have concluded. If the husband wishes to remarry his now former wife, a new marriage contract will have to be concluded.
Where the husband declares Talaq three times, no attempt for conciliation would be made available as the divorce will be considered irrevocable. In an instance of such non-retractable repudiation, the man may return to his former wife only after she marries another man, consummates that marriage, and divorces the new husband.
2) Divorce via Judicial Ruling
In the absence of Talaq, the spouses may initiate and complete the entire divorce proceedings by petitioning to the courts of the UAE. In accordance with Article 16 of the Personal Status Law, once an application for divorce is made, the spouses will be referred to the Family Reconciliation Committee, which is a subsidiary department of the court. Should the spouses fail to reach an amicable settlement, the complaint will be referred to the court, where a judge will determine if there are statutory grounds for divorce. According to the Personal Status Law and subject to the court’s discretion, divorce will only be permitted if the party seeking a divorce can successfully argue one of the following grounds:
Account of specific impairment, (Impairments such as insanity, leprosy, impotence, and venereal disease). A party may rely on “impairment” as a ground for divorce only if no knowledge of their spouse’s impairment prior to marriage existed. If either of the spouses, possessing one of the listed impairments, knowingly and during the formation stages of the marriage, deceives the other spouse with regards to the presence of an impairment, the Personal Status Law will entitle the deceived spouse to file for divorce upon becoming aware of the disability. However, it is possible that the courts will choose to postpone the divorce case for a period of one year to determine whether the impairment is capable of being cured.
Non-payment of the dowry, alternatively referred to as “Mokaddam”. A wife in a non-consummated marriage may apply for a divorce due to a husband’s non-payment of the due dowry.
Harm or disputes. If marriage causes harm to either spouse or undue prejudice that would make the continuity of the marriage impossible, the spouse effected by such may apply for a divorce. Thereafter, the court may instruct two arbitrators to investigate the reasoning for the discord between the parties involved and report their findings to the court. Furthermore, the spouse causing such harm may, at the discretion of the court, be made financially liable.
Lack of financial support during the marriage. A wife will be entitled to request for a divorce if the courts determine that the husband had sufficient funds to support her but failed to do so.
Absence and disappearance with known address; unknown address. A wife will be entitled to divorce the husband if he has disappeared. However, the divorce judgment may only be granted once a full year has passed without her husbands’ return.
Zihar. A wife is entitled to divorce her husband if he takes an oath not to have sexual relations with her for four (4) months or more. The judge shall warn the husband to amend or repair the situation and should he refuse, without a valid reason, the judge shall order a non-retractable divorce.
Imprisonment. The wife is entitled to divorce if, the husband is sentenced to a term of imprisonment of three (3) years or more and/or has been in prison for more than one year during the divorce. A husband, in the same circumstance, may be entitled for divorce only via the alternative methods.
Khul is a procedure through which a woman can, at her own will, divorce her husband. However, by doing so, the woman will have to return the dowry and the marital entitlements she was previously given by the husband in accordance with the marital agreement.
It is always best for the spouses to reconcile in an event of a divorce dispute. Reconciliation has also been made a precondition to filing a divorce case in the UAE Courts. However, at times, couples suffer an irretrievable breakdown of their marriage which may be impossible to reconcile. In such an instance, it is essential for the spouses to familiarize themselves with the laws and regulations of the UAE or engage an experienced lawyer to advocate and secure the parties’ legal entitlements.