When people talk about woman's rights, there will always be a question regarding woman's rights towards her
children. Can a woman have the same rights as her husband when it comes to the upbringing of their children upon divorce?
When a couple divorces, besides the divorce financial settlement, there will be "emotional" settlement as well, which concerns the custody and the guardianship of their minors.
This article is going to address some of the questions we always get as legal advisors regarding women's rights upon marriage termination.
The definition of custody, according to the Personal Status Law, represents the keeping, bringing up and taking care of the child, without interfering with the right of the guardian of the person.
According to the article no. 178, Personal Status Law, guardianship includes guardianship of the person and guardianship of property.
Guardianship of the person is the care for all the minor's affairs, including supervising, protecting, raising, educating him, directing his life, prepare him well, and agreeing to get him married. Guardianship of the property represents the care for all the matters related to the minor's property, its protection, management, and investment and shall include guardianship, curatorship, and legal representation.
What is the child's status upon divorce or father's death?
Upon marriage' termination either by divorce or by the death of the father, two main effects will determine the child's status: custody and guardianship.
Custody is usually rendered to the mother, which legally will become the custodian. She is the regular caretaker, responsible for all the essential a child requires: bathing, feeding, schooling, etc. and she will have the physical custody of the child.
Guardianship applies to the father, and he will be the one in charge of the child's affairs, disciplines, orientations, providing all the finances a child upbringing requests (schooling, healthcare, etc.). In many cases, he should provide housing for the child and mother (whenever the woman does not have the means for a place of her own).
According to custodianship and guardianship rules, do parents share equal rights regarding their children?
As per the matters stated above, the obvious answer is that parents do not share equal parenting rights/obligations when it comes to the status of their children upon the termination of the marriage. However, each parent's responsibility is quite different from the other, the father carrying the financial burden and the mother carrying the day-to-day responsibilities.
Generally, Sharia regulations do not provide the same western concepts of children's custody, and the effects of divorce in the UAE will trigger the concepts mentioned above.
What are the general requirements for being a custodian?
Article no. 143, Personal Status Law, outlines the general conditions for being a custodian, which are:
- Being sound of mind;
- Being of legal age and major;
- Being Honest;
- Capable of bringing up the child;
- Capable of protecting and caring for the child,
- Keeping the child safe from dangerous infectious diseases
- Lastly and most important of all, NOT being convicted of any infamous crime.
Can the mother cease to be the custodian of the child?
Generally, the custody of the child goes to the mother. The law provides some more conditions to be fulfilled by the mother to keep her custodian role. Article no.144, Personal Status Law mentions that the custodian should have the same religion as the child when a woman should not be married to another man.
The mother can lose custody when she is not complying with these conditions, but this will depend on the different circumstances of every case. The judge will decide based primordially on the child's best interest.
Will the mother have custody of her children until they reach the age of majority?
The rule is that custody granted to the woman expires once the child reaches 11 years old (for boys) and 13 years old (for girls).
Once again, if the spouses are in conflict in regards to the custody rights, the judge has the power to extend the custody with the mother until the male reaches the age of majority (21 years old) or female marries.
How is the custody passed from the mother to the father?
The father has a timeline in which he can request custody of his children. He has a period of 6 months, starting with the day the boy reaches 11 years old, or the girl reaches 13 years old. If the father doesn't request custody within the first 6 months, he will be considered as he waives his right to claim it.
What are the general conditions for being a guardian?
According to Article no. 180, Personal Status Law, like the custodian, the guardian must meet the following conditions:
- Legal age,
- Sound-minded,
- Honest,
- And capable of performing the guardianship requirements.
The guardianship of the child shall be awarded primarily to the father and after to the agnates from the father's side, as per the order of heirship. In case there is no person entitled to guardianship, the court shall appoint a guardian of the person from the minor's relatives.
Does the guardian have visiting rights?
Article no.154, Personal Status Law, expressly mentions the right of the non-custodian parent to visit and to receive visits by the child. The place, the time, and the person in charge to bring the child have to be agreed with the custodian and in case of a conflict thereon by the judge.
Is the guardian's approval required when the custodian is relocating along with the child?
The custodian is not allowed to relocate with the child to another city within the state if such movement affects the child's education or is causing any harm to the other parent or makes him/her suffer any unusual hardship or cost for visiting the child. Such situations put the custodian at risk of losing the child's custody.
How can the custodian/guardian travel abroad with the child?
The custodian can travel abroad with the child, as long as the guardian's prior written consent is provided. If the guardian arbitrarily refuses to give such permission, the matter can be taken before the courts for the judge to decide. Also, the guardian must obtain the custodian's written consent before traveling with the child outside the UAE. So, both the custodian and the guardian have the same rights and obligations here.
Can the former wife still be sponsored by her ex-husband?
Before answering this question, we have to clarify some precepts about having a residency in the UAE.
In the UAE, any person who wishes to reside within the state must have a residence permit "Visa," which can be obtained if the said person is sponsored by a family member, or has managed to find a job in the UAE. To get a working permit, the new employees need to have a sponsor as well, which usually is the company / the employer they are working for.
For those situations when the former wife does not have a job in the UAE, she will be allowed to have a residence within the state, along with her and their child/children being sponsored by her husband as a housewife.
The main issue arising from such situations (when her husband sponsors a wife) is that once the divorce procedure is over, and the spouses are declared separated, the husband ceases to be the sponsor of the women. Within a month from the divorce, she has to leave the country unless she manages to find a job during this period, which in most cases is unlikely.
Sometimes, the dissolution of marriage can be caused by the death of the husband, which will also lead to deportation of his widow within a month from the deceased date.
With plenty of cases of divorcees or widows in the UAE, the authorities decided to extend the period of one month to one year for divorced women or widows.
The UAE Cabinet adopted the decision on the 12th of June 2018, mentioning that it aims to allow the women to adjust their social and economic status before leaving the country.
The decision grants the right to apply for a one-year residency visa to divorced women and widows (and their children living in the UAE), without having a sponsor.
In conclusion, family aspects are of great significance in the UAE and most of the countries following Sharia principles. A very important element with regards to the UAE regulations is the merge between Islamic teachings and the civil rules, striving to create together a modern framework without leaving behind religious precepts.
Even though Sharia regulations do not provide the same meaning for certain legal aspects found in common or civil law countries, custodianship and guardianship of a child upon divorce or death of one parent will always be decided upon the child's best interest.
Furthermore, aspects analyzed in this series of shorter or longer articles about women's rights should enlighten and clarify all those misconceptions concerning women's status under Sharia Regulations.
Women are considered equal to men and sometimes superior to them even though the UAE law provides them with special protection.
For any legal assistance and further inquiries concerning the subject, please do not hesitate to reach us at ae@elnaggarlegal.com.
For any suggestion and comment in regards to the legal blog or the above article, please email us at editorial@theuaejurist.com.
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