The UAE has the most noteworthy rate of judicial separation in the GCC. This excessive amount of divorce cases within the UAE has necessitated the Divorce Lawyers of Dubai to reveal some insight into issues identified along with it.

This article explicitly focuses on one question regarding the custodial rights of the mother if she plans to re-marry in UAE or in any other jurisdiction and the court's opinion in such cases. Under UAE Personal Status Law, a woman has equal rights as that of man to divorce the husband irrespective of his consent as clearly allowed by the Federal Supreme Court. However, the court may not award divorce to the husband, if there is no evidence of mistreatment or fault from the side of the wife. On the off chance, if the wife proves mistreatment from her husband, she has the rights to seek divorce, custody, compensation and dowry.

In comprehending the issues of custody of children, the UAE courts may contemplate the guardian's religion, residence, monthly income, and the mother's consequent conjugal status. The law offers priority to the Muslim father, independent of his nationality when the mother is a non-Muslim. Essentially, until the age of 13 years for a girl and 11 years for the boy, the custody will be given to the mother, however, may be overturned post this age. On the off chance that the court finds the mother "incompetent" to become a custodian, regardless of his/her age, the child can be given to the father, or to the child's grandparents on the dad's side.

A finding of inadequacy is left completely to the carefulness of the Sharia judge. Incompetent behaviour is usually referred to as behaviour against Sharia Principles. Importantly, the mother will lose her privileges of custody should she remarry. Nevertheless, if both the parents are considered by the court as incompetent to attain the custody of the child, the custody will be awarded to the grandmother from the father's side of the child.

In a very recent judgment of Federal Supreme Court under case number 254 of 2017, the custody of the mother was challenged on the ground of her re-marriage. The ex-husband objected her custody rights due to her re-marriage and accordingly, the grandmother raised a claim to seek custody. The court of the first instance awarded custody to the grandmother, and the case was presented before the Appeal Court, and the lower court's decision was upheld. The matter thereafter was presented before the Federal Supreme Court, and the judgment was as follows:

"The court dismissed the case in light of the fact that as per Article 144 of the Personal Status law, the conditions for a mother to get custody were not to be married, or be in a consummated marriage, to a man not related to the child, except if the court decides generally in light of a legitimate concern for the child and the Trial Court had the specialist to assess the child's best advantage.

The challenged judgment considered that the custody is effected in three ways, however, if the court believes that the custody of the child with the mother would protect the interest of the child, the custody should remain with mother. Accordingly, the ex-husband failed to prove the negligence in performing her duties as a mother the custody of two daughters were awarded to the mother.

End-Notes:

1. Divorce Lawyers of Dubai