Dubai: With the UAE issuing a new personal status law for non-Muslims, there are various aspects of the lives of non-Muslim residents in the UAE – like marriage, divorce, child custody and inheritance – which would be covered under the new legislation.
While the law will come into effect from February 1, 2023, residents will have the option to adhere to the application of their own country’s law. Moreover, non-Muslim foreigners may agree to implement other legislation on family or personal status in force in the UAE instead of the provisions of this Decree-Law, it was announced.
February 1 2023
when the new law - Federal Decree Law No. 41 of 2022 on Civil Personal Status will come into effectCommenting on this provision of the new decree law, Ahmed Elnaggar, Managing Partner at Elnaggar & Partners, said that it allows UAE residents the ability to choose to be governed by the laws of their home country.
“When conducting affairs relating to personal status, individuals have the freedom to state which laws they choose to be governed by, including foreign countries’ laws. However, this derogation [an exemption from or relaxation] from UAE Federal Law should be mentioned expressly in the wills or agreements made concerning personal status, including those relating to marriage or divorce. This leaves all individuals the option to choose which jurisdiction they wish their relationship would follow,” Elnaggar said.
When conducting affairs relating to personal status, individuals have the freedom to state which laws they choose to be governed by, including foreign countries’ laws.
He added that the provisions in Article 1 of the Federal Law also mean that non-Muslims may be able to choose the personal status law issued by the Emirate of Abu Dhabi - Law No. 14 of 2021 for non-Muslim foreigners, in certain cases.
“The law provides for a more flexible court, with affairs being conducted in Arabic and English. It also […] removes the requirement for authorisation from the wife’s guardian for a civil marriage to take place,” Elnaggar said.
“However, the jurisdiction of Law No. 14 of 2021 would only include non-Muslim foreigners having addresses in Abu Dhabi, if a civil marriage took place in Abu Dhabi, if a claimant or respondent has a work or home address in Abu Dhabi, or at the court’s discretion. The applicability of the law is also based on similar factors, including when marriages or divorces are concluded under the Abu Dhabi law. Law No. 14 of 2021 may also apply to a broader range of circumstances, such as when the marriage or divorce took place in a country that does not apply Sharia principles for family law matters,” he added.
Five criteria for civil marriage
Article 5 of Federal Decree Law No. 41 of 2022 on Civil Personal Status looks at civil marriage, and provides five conditional criteria for a civil marriage to take place. The criteria are as follows:
1. Both spouses must be at least 21 years of age. Age is proven by any official document issued by their respective countries of nationality.
2. Marriage must not be between siblings, children, grandchildren or uncles, and any other cases specified by the Implementing Regulations.
3. Each spouse must expressly declare before the certification judge his or her consent to marriage, and that there is nothing, which would legally prevent the acceptance of his or her consent.
“General factors that may discredit consent to marriage may be age,” Elnaggar said.
“Law No. 41 of 2022 now calculates age based on the Gregorian calendar, stipulating they must be at least 21 years old. Another factor may be the eligibility [of individuals] to marry each other in relation to their mental capacity. This follows the basic contractual principles, where if an individual is unable to understand and comprehend their legal rights and obligations, they are not capable of entering a marriage,” he added.
4. Spouses must sign the Disclosure Form.
Speaking about the disclosure form, Mohamed Elmasry, Associate at Al Suwaidi and Company LLC, said: “A disclosure form must be signed by the spouses as a prerequisite to the execution of a valid marriage contract. The disclosure form must contain information concerning any prior marriages of either spouse, a declaration by the wife that she has no other existing marriage, and, in certain circumstances, a declaration by the husband that his governing laws do not permit polygamy. It is expected that the required disclosure form will be obtainable from the Personal Status Court for Non-Muslim Foreigners in the Judicial Department once the law takes effect on February 1,2022."
The disclosure form must contain information concerning any prior marriages of either spouse, a declaration by the wife that she has no other existing marriage, and, in certain circumstances, a declaration by the husband that his governing laws do not permit polygamy.
5. Any other conditions set out by the Implementing Regulations of this Decree-Law.
“Implementing regulations serve as an explanatory memorandum to the law and elaborate upon the general conditions contained in its Articles,” Elmasry said.
However, he clarified that to date, no implementing regulations have been issued for the new law.
“As such, there are currently no additional conditions for civil marriage beyond those enumerated in the decree law,” he said.
