This group of people constitutes almost one-fourth of the population of the Emirates, out of nearly 10 million people.
Effective February 1, 2023, the UAE Government came up with a new non-Muslim personal law issued vide Federal Decree-Law No. 41/2022. This law specifically deals with the civil and personal status of non-Muslims in the UAE. This group of people constitutes almost one-fourth of the population of UAE out of nearly 10 million people. It comprises both citizens and expatriate residents.
Since the promulgation of the new law, over these few months, we have seen that there has been a lot of curiosity amongst the non-Muslim population with regard to certain provisions of the said law especially when we talk about marriage, divorce, inheritance, registration of Wills, child adoption, etc. This law helps bring clarity to such issues of the non-Muslims in UAE. Accordingly, we have collated a few such questions of mostly common concern and provided answers to them which would help the non-Muslim population in UAE to better understand the nuances of the new law in relation to them.
These are as follows:
What is the scope or applicability of the said Decree?
The Decree shall be applicable to non-Muslims who are citizens as well as foreigners residing in the United Arab Emirates. It is not applicable to non-Muslim foreigners who are not residents or citizens of the UAE.
Is the law applicable to non-resident non-Muslim foreigners who hold property or real estate in UAE?
No, this law is not applicable to non-resident non-Muslim foreigners holding property in UAE. They would still attract the applicability of local laws including sharia ‘a as applied unless of course there is a registered Will in place which provides for specific distribution or bifurcation of the Estate and/or the applicability of their own home State law.
Please refer to the provisions of Article 17 of the Civil Transaction law i.e., Federal Law No. (5) of 1985 and amended as per Article 1 of Federal Decree-Law No. 30 dated 2020/09/27, which is stated hereunder as follows:
Subject to the provisions of Paragraphs (3) and (4) of this Article, heritage shall be governed by the law applicable in the State of the testator at the time of his death.
The financial rights present on the State’s territory, and which belong to a foreigner having no heirs shall be transferred to the State.
The substantive provisions of the Will and all actions related to the after-death stage shall be governed by the law of the State as specified by the Will or the alienation act, or the law of the State to which the person carrying out such action belonged upon his death if no law is specified by the Will or the alienation act.
The form of the Will and all alienations related to the after-death stage shall be governed by the law of the State of the person carrying out such alienations upon the issuance thereof, or the law of the State in which such action took place.
Provided that the law of the UAE prevails regarding the Will issued by a foreigner for the real estate thereof in the State.
What does the Decree provide for or rather what are the highlights of this new non-Muslim personal law?
The highlights of the new non-Muslim personal law are as follows:
a. It provides for equality in testimony before the UAE court/s vis-à-vis gender. In other words, it provides for the validity of testimony of both man and woman before the court without any discrimination between genders.
b. It provides for equal rights to non-Muslim man and woman in inheritance matters.
c. It provides that either husband or wife can seek divorce from the court unilaterally and without giving any reason for it.
d. Lastly, it provides equal rights to non-Muslim man and woman to seek joint custody of a child until he/she reaches the age of 18 years. Once the child reaches the age of 18 years, he/she will have the freedom to choose any parent to stay with.
What are the conditions of civil marriage under the Decree?
Article 5 specifically deals with the conditions that must be met for non-Muslim civil marriage to be legalized. These are as follows:
a. Both husband & wife must have attained marriageable age of 21 years. This can be proved with the help of any official document issued in a country to which they belong or the duly certified birth certificates.
b. Marriage is not allowed between relations such as sons, brothers, grandchildren, paternal aunts, uncles, etc.
c. Both spouses should give their consent expressively before the authenticating Judge. It can be verbal or in writing but has to be explicitly expressed.
d. Both spouses need to sign a disclosure form which can be attained from the respective consulates of the countries to which they belong. This should disclose any previous or existing married relations or divorce details, if applicable.
Are the pre-nuptial contracts allowed?
Yes, prenuptial contracts are allowed and these should include the following:
a. Specified rights of the husband and wife during the marriage and post-divorce.
b. Custody of children in case of divorce which can be kept as joint until a child attains the age of 18 years.
c. Distribution of wealth in case of death of either spouse.
d. Post-divorce alimony grants.
It is always recommended to seek help from professional lawyers who are expert at drafting such pre-nuptial agreements.
Are there any grounds for Divorce and how it is to be initiated?
Divorce proceedings can be initiated voluntarily by either spouse before the court by expressing that he/ she wishes to separate. There is no justification, or any reasons required to initiate such a request, indicate any damage, or play a blame game. Divorce shall be granted by court judgment after notifying the other party.
How is divorce alimony granted?
A woman whose divorce has been granted should apply to the appropriate Court for obtaining alimony from her ex-husband. In case there is a pre-nuptial agreement that provides for such alimony, the Court would investigate such an arrangement and grant accordingly. However, if there is no such agreement, then its acceptance by the Court shall depend upon the Judge’s discretion after evaluating the following:
a. Number of years of marriage – More years would attract more alimony.
b. Age of wife – A younger wife would attract less amount of alimony and vice versa.
c. An accounting expert appointed by the Court would assess the financial status of each spouse and accordingly prepare a report for the Court’s consideration.
d. How much the husband has contributed to such a divorce, specifically, if there has been any adultery committed in the relationship by the husband or wife?
e. Either spouse shall compensate the other for any material or moral damage caused as a result of divorce.
f. The husband shall bear the cost of children in joint custody for up to a period of two years.
g. It shall also be assessed whether the wife is diligent in taking care of the children.
h. Wife’s alimony shall be forfeited in case of her remarriage.
How does inheritance work under the new non-Muslim law?
Article 11 deals with the Inheritance which can be according to the registered Will of the deceased resident. However, if there is no Will registered by the resident who is deceased i.e., he/she dies intestate (without leaving a Will), the inheritance would then work as follows:
a. Half (12) of the Estate goes to the surviving spouse and the other half (12) shall be equally divided amongst children. For instance, if there are three children, then each child will get 12×13=16 of the portion of the Estate. In the case of two children, each child will get a 12×12=14 share in the Estate. There is no distinction made between male and female children.
b. If the deceased had no children, then their 12 share (the other half 12 is already with the surviving spouse) shall devolve upon both living parents, i.e., father and mother, in equal proportions i.e., 12×12=14 to each parent.
c. If there is only one parent alive, then their half’s half i.e., 12×12=14 to the alive parent, and the other half’s half i.e., 12×12=14 to brother and sister in equal proportion. In other words, each brother and sister who is alive will receive 14 ×12 =18 shares in the Estate. If there are 3 siblings of the deceased, then each sibling will get 14 × 13 = 112 shares in the Estate.
d. If the deceased had no spouse, no children, and no living parents, then the inheritance shall devolve upon the brothers and sisters in equal proportion i.e., for 2 siblings the share would be 12, and for 3 siblings, the share would then be 13 each.
e. If the deceased had no spouse, no children, no brothers/sisters, but only a parent alive, then the entire Estate devolves upon this alive parent. If both the parents are alive but there is no other heir, then each parent gets inheritance in equal half proportions i.e., 12.
f. If no heirs are alive, then the entire Estate is taken over by the State.
What is the procedure for registering a Will before the Dubai Court Notary Public?
There are some specific steps involved in registering a Will which are enumerated as follows:
- Drafting of a Will – This should clearly state how an Estate is to be devolved upon the heirs and what the share distribution is - which can either be expressed in fractions or in % share of the value of the Estate.
- Once drafted, the contents of the Will are also required to be approved and translated into Arabic with the help of a certified translator/s.
- Thereafter, the Will is to be approved and attested by a Dubai Court Notary Public – which is the final step in the registration of Wills.
Can Wills be registered with other authorities apart from the Dubai Court Notary Public?
Yes, Wills can also be registered with Dubai International Financial Center (DIFC) or Abu Dhabi Global Market (ADGM) for which there is no requirement for translation of the document into Arabic. It can simply be drawn and registered in the English language. The ADGM provides a specialized facility for non-Muslims with assets in Abu Dhabi to create a will that is recognized and enforced under the common law principles of inheritance. The other authority(ies) are the Abu Dhabi Judicial Department for which Arabic translation is required and Ras Al Khaimah International Corporate Center i.e., RAKICC. It is always recommended to seek help from professional lawyers who are conversant in the field of registering Wills in the UAE.
How is the parentage of a child proved under UAE law?
Article 14 provides for proof of the Parentage of a child under this law which can be proved as follows:
- By marriage of parents. A certificate of marriage from the home country or where the marriage took place can be shown as proof.
- By the acknowledgment of the father and mother as to the parenthood of a child.
- Birth certificate issued for the child.
The Court may also order a DNA test though it will pass an order only after verifying that the child is of unknown parentage and the difference in age allows the child’s parentage by whoever claims to be his/her parent.
The author is a Senior Associate - Intellectual Property & Corporate at Alsuwaidi & Company LLC Advocates & Legal Consultants.
News Source: Khaleej Times