divorce
According to UAE divorce law, unless the interest of the fostered child demands otherwise, a woman’s fosterage shall continue in case the child is of unsound mind or is suffering from a disabling illness. Image Credit: Creative Commons

Child custody and alimony

Question: I am a Muslim woman married to a Muslim man. I had a quarrel with my husband and I want to divorce him because it is impossible to live with him. I have a 12-year-old son and a 14-year-old daughter from him. My question is, in the event of a divorce, do I have the right, according to Sharia, to demand custody of my children and until what age? Is it possible to claim previous alimony?

Answer: Article (156) of UAE personal status law states:

1. The right of a woman to foster a child shall end upon the child reaching the age of 11 years, if male, and 13 years, if female, unless the court deems that extending this age-limit to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest.

2. Unless the interest of the fostered child demands otherwise, a woman’s fosterage shall continue in case the child is of unsound mind or is suffering from a disabling illness.

You have the right to demand the custody of the children, leaving the decision to the court based on the interest of the children. The court may decide to extend this age-limit in the interest of the child in relation to a male child until he reaches puberty and for a female child until she gets married, if there is an additional real interest that requires extending the age of custody for the mother. Its discretion is subject to the jurisdiction of the court.

Also, the scope of custody in all cases shall be determined in the interest of the child, even if that contradicts the interest of the guardian, because the right of the child to care and protection is more important than guardian’s right.

It has been decided in Dubai Courts that ‘Custody is a mother’s inherent right even without a request from her, and that this right is established for her from the date of birth of the child and until the date determined for the expiration date of the mother’s custody, in accordance with the provisions of Article 156 of the law when the male child reaches 11 years of age and the female child reaches 13 years, unless the court decides to extend this age for the benefit of the child and until the male child reaches the age of maturity and the female child marries’. (In cassation No 363/2020, Personal Status.)

As for alimony, you have the right to request for it from the date the husband refrained to pay it and for a past period not exceeding three years, as per Article 67.

Alimony to the wife is due as of the date of refraining from making the payment when it is due, as a debt on the husband — independent of a court judgement or agreement. It is not forfeited except by payment or discharge.

Recovering a bad debt

Question: I had given a loan to someone, but there is no written evidence of that. I only have a copy of the cheque through which I had given the money. More than two years have passed since then, but the debtor does not want to repay the amount. How can I act legally to enforce my right, when I only have a copy of the cheque and the debtor has refused to even accept the fact that it was a debt in the first place?

Answer: You have to file a suit in the civil courts, requesting the debtor to return the amount paid, on the basis of the copy of the cheque.

As a creditor, you must prove that you have paid the amount to him or on his behalf with all the means of proof such as:

a) Written documents including emails, WhatsApp messages ... etc

b) Testimony

c) Presumptions

d) Eye-witness accounts and expertise

e) Avowal

f) Oath

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As a general principal, the plaintiff has to prove his right, and the defendant has to disprove it according to Article 1 of the law on evidence in civil and commercial transactions. For example, you must bring the bank evidence and prove that this amount was not for any work relationship between you and the debtor. You may request the testimony of any person who knows about this loan and you may request the person to say this on oath ... etc.

The court has the full authority to examine the evidence and documents presented in relation with the lawsuit, to weigh them and to extract what it deems to be the reality in the case. (As decided in the court in Cassation No 179/2020, Real Estate.)