Question: I am a non-Muslim man and have been married to a non-Muslim woman for five years. We have three children - a girl and two boys. Currently, there is a dispute between me and my wife, and all efforts to settle have failed. She is asking for a divorce, and I also do not have a job at the moment. My question is, if the wife decides to file a case for divorce, can I ask the court, after the divorce ruling, to obtain custody of the children and leave the UAE and live with them and take care of them in my country, as I failed to get a job in the Emirates and I want to leave as soon as possible?
Answer: According to Article 10 of Federal Decree Law No. 41 of 2022 on Civil Personal Status for Non-Muslims, parental responsibility for children shall be shared by both the father and mother after divorce, unless the parties submit a request to the court to establish custody for the party who is able to meet the interests of the child in custody, or either of them waives custody right in writing before the Court, or applies to the Court for removing the other spouse from joint custody and terminating his/her right of custody for any reason acceptable to the Court. To take the kids and travel back to your home country, is an agreeable matter between you and your ex-wife and in the event of a disagreement, you have the right to submit an application to the court to decide on the matter in dispute.
The mentioned Article states that:
1) Custody of children is a right granted to both the father and the mother equally after the divorce, as well as it is a right of the children to have both parents raise them, to minimise the psychological effect of divorce on the children.
2) The primary rule in terms of custody is that the father and the mother shall have joint custody over the children after the divorce, unless the two parties submit a request to the court to grant custody to whoever is capable of achieving the best interests of the child, or one of them requests a written waiver before the court of his right to custody, or submits a request to the court to exclude the other party from joint custody for any reason accepted by the court, such as incapacity, danger of such custody, or the party failing to perform his duties.
3) In the event of a disagreement between the father and the mother regarding any matter of joint custody, either of them has the right to submit an application to the court to object, or to request the intervention of the court to decide on the matter in dispute.
4) The court will have the discretionary power to decide what it deems appropriate for the interest of the fostered child, based on the request of either parent after the divorce.