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After the agreement was originally made in 2004, new legislation was passed in the area of family law in 2005.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 applying 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 a great deal of detail of discretion awarded to Courts in deciding family law issues.
Author: Mr. Hassan Elhais, along with his team of legal consultants and prominent local lawyers across the UAE, has made a name for himself as a renowned specialist in the fields of civil law, construction law, banking law, criminal law, family law, inheritance law and arbitration.