Acting to stop harm: the FCA and Appointed Representatives
For expatriate residents of the UAE getting divorced can be complicated enough with different local and English laws governing asset splitting, spousal support and the parameters of the final settlement but when children are involved things only get more complicated.
For already divorced parents, relocating with children to the UAE or resolving disputes over visiting rights are also not straightforward.
This is because unlike in many other countries there is no possibility of enforcing English Court Orders concerning children in the UAE.
The decision to relocate is a big one. If you intend to take children with you and their other natural parent will remain in England, you will need the agreement of that parent or permission of an English Court. The process can be expensive and take up to one year. There is no certainty of success.
If an agreement or decision is arrived at that allows the children to travel, safeguards will usually be required so as to ensure the children maintain a relationship with the parent left behind.
The only way of achieving this is for an agreement to be made by the parents, acceptable to a committee in the UAE (the Reconciliation Committee) which, once accepted can be made a judgment of the local Court and therefore enforceable. It is however difficult to find examples of how problems connected to these agreements and judgments are resolved by local Courts.
It is understood that such agreements cannot be made in respect of illegitimate children. The plight of such children and parents in the UAE is well documented online.
Parents travelling with their children experience no difficulties. However where children of separated parents, travel, for example to visit their father in the UAE, it is not straightforward. An English Court recently rejected the possibility of such a visit as it was concerned about the lack of safeguards for their return.
As in England, decisions made by local Courts are always made in the best interests of the children which usually means that minor children will live with their mother. Remember however that, in the UAE, children stop being minors at an earlier age (approximately 11 boys and 13 girls) than in the UK. This is relevant to custody arrangements in that women tend to be granted automatic custody of female children and temporary custody of male children only until maturity. When the children reach maturity custody will then revert to the father if he applies for it. Unlike in the UK, children’s wishes and feelings are not taken into account by the local Courts until they reach an “age of discretion”. Fathers’ views have a strong weight particularly if they are Muslim and the mother is not. A mother may lose custody if she remarries. It is possible for the parents to agree to ask a local Court to apply the law of their own country. However examples of the Courts actually applying English law have proved hard to find.
As I have mentioned, illegitimate children have no status in the UAE which means that if parents of such children have a dispute regarding any aspect of parenting which they are unable to resolve, they cannot take the issue to a local Court. In theory it is also worth noting that the parents of illegitimate children can face arrest (sex out of marriage is a sin punishable under the Penal Code) and deportation.
The UAE is not a signatory to the international treaty, the Hague Convention on Child Abduction. This means that if a child is taken to the UAE by a parent without consent it may be hard, or impossible, to have them returned. The same position applies to children being taken from the UAE to England (perhaps by a mother returning to obtain jurisdiction for divorce). In theory international arrest warrants exist as a deterrent and possible means of achieving the children’s return. However these also have repercussions in terms of the criminal record of the accused parent and the child's ability to travel internationally. The unauthorised movement of children raises problems that obviously should be avoided.
Just as expat couples facing divorce in the UAE can expect to find different tests and rules under local law compared to English norms, so too the UAE courts will take their own line if disputes arise in relation to custody of children or travel arrangements for children. Any parent concerned about access and custody as a result of a separation from their partner should be well advised in local law.
Should you have any questions about the issues raised in this blog, please contact a member of our team of family and divorce solicitors.
You may also be interested in reading our previous blogs and articles on related issues:
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