The difference between custody and guardianship
ustody and guardianship is an often repeated concern for expats considering a divorce in the UAE. These concerns are further compounded when the parties are not aware that the laws of the UAE differ from those of the country of their nationality.
When considering a divorce, the husband and wife must note that custody and guardianship are two separate issues that must be addressed separately, as parents do not share joint parental responsibility for a child in the UAE, as is the case in England and Wales.
So what happens after a divorce?
Usually in Dubai, the default position is the mother will be the custodian until the age of puberty, after which custody reverts back to the father. The father shall be the guardian of the children until the age of majority, 21-years-old.
The local courts here will always act in the best interests of a child in such matters.
What is the role of a custodian?
The custodian is responsible for the physical possession of the child and their nurturing, which includes their daily care within their home. Even though the mother of her children has custody, she is restricted to specific duties and is unable to make decisions on behalf of the children without the father’s consent.
What is the role of a guardian?
The guardian’s role includes supervising, protecting, educating, providing medical care and retaining the children’s passports. It also involves guiding the child in terms of morals, discipline and religion.
Can anyone be a custodian? As set out in Article 143 and 144 of the Federal Law 28 of 2005 (Personal Status Law), a custodian must be: 1. Rational 2. Mature enough and have attained the age of puberty 3. Honest 4. Able to bring up and take care of a child 5. Free from infectious disease 6. Not have been sentenced for a crime of ‘honour’
Also, if the custodian is the mother she must not re-marry unless the court decides it’s in the best interests of the child and she must share the same religion as the child.
If the custodian is the father, he must have a suitable woman living within his home to care for the child, such as a female relative, and also
Does it always end in a court battle?
In order to deviate from the default position of custody and guardianship, both the husband and wife can draft a settlement agreement (recommended with the advice of a licensed lawyer) and amicably agree to the terms of their divorce.
The parties are able to confirm how custody would be shared and insert specific provisions and conditions in the agreement should they wish.
This agreement shall then be filed with the local courts alongside the divorce application and this settlement agreement shall be endorsed by the courts as a legally binding contract for both parties. In an amicable agreement, typically the mother would have custody and the father would define when he can visit the children, on what days and his responsibilities.
This route ultimately saves time, money and ongoing disputes. If an amicable agreement is not reached then the matter would proceed as a contested divorce through the courts. This route can be time consuming, expensive and the outcome of the divorce is ultimately at the discretion of the judges at the court.
Would I need a lawyer?
In such sensitive family matters it is prudent for either party to seek proper legal advice from the outset from an experienced and licensed family lawyer to guide you through the process and the legalities involved in this jurisdiction.