Prof. Gabriel Sawma
The United Arab Emirates (UAE) is a union of seven emirates of Abu Dhabi, Ajman, Fujairah, Sharjah, Dubai, Ras al-Khaimah and Umm al-Qaiwain. These emirates are located in the southeast end of the Arabian Peninsula on the Persian Gulf, bordering Oman to the east and Saudi Arabia to the south. Article 7 of the constitution of the UAE states “Islam is the official religion of the Union. The Islamic Shari’a shall be a main source of legislation in the union. The official language of the Union is Arabic.” This means the law of marriage, divorce, custody of children and inheritance is governed by the Qur’an and sayings and deeds of the Prophet of Islam, which constitute the major elements of Islamic Shari’a.
In 2005, the UAE enacted Federal Law No. 28 to govern matrimonial issues in what is called Matters of Personal Status or Personal Status Law (PSL). The PSL covers rules over marriage, divorce, guardianship, maintenance (Arabic nafaqah) and inheritance. Article 2 of PSL states that its provisions are based on Islamic fiqh (jurisprudence), and if no ruling exists in Islamic jurisprudence, a determination will be made in accordance with the “prevailing opinion in the Sunni Schools in the following ranking: Maliki, Hanbali, Shafi’i, and Hanafi” followed by “general principles of the Islamic Shari’a and social justice.”
THE MARRIAGE CONTRACT
Islamic marriage is a contract with two major elements: an offer by one party, and acceptance by the other party. Article 39 of the PSL mandates that the marriage of a woman over eighteen must be approved by a male guardian, otherwise, the marriage will be considered “null” and the couple would be separated. In addition to that, the law requires the presence of two Muslim male witnesses for the validity of the marriage between two Muslim couples, although Christian and Jewish witnesses are acceptable if one of the couple is Christian or Jew.
MUSLIM MAN’S ABILITY TO MARRY MORE THAN ONE WOMAN
The Personal Status Law of the United Arab Emirates does not prohibit a Muslim man from marrying a Christian or Jewish woman as we mentioned earlier. But on the other hand, a Muslim man is allowed to marry up to four wives at the same time. This means that, even though he is married to a Christian or Jewish wife, he can still marry up to four wives.
CHILDREN BORN OF SUCH MARRIAGES ARE CONSIDERED MUSLIMS
Under the law of Islam, children born of mixed marriages, involving a Muslim man and non-Muslim woman are considered Muslims. The religion of children born of a Muslim father, always follow the religion of the father. It does not matter even if the child is baptized in the Christian faith, he is still and will always be regarded as Muslim, and is governed by Islamic Shari’a.
CUSTODY OF THE CHILDREN IN THE EVENT OF DIVORCE
Marriages between UAE nationals and foreign-born wives are more likely to end in divorce. According to some accounts, the UAE has the highest divorce rate in the Gulf region; in 2005, it reached 46 percent. While women, who are UAE nationals, receive financial aid from the government after divorce, women are not eligible for such aid.
In the event of divorce, or death of the husband, a Christian or Jewish woman married to a UAE national, the wife will lose her custody to her children. This is based on Islamic jurisprudence which says, a person outside the religion of Islam is not qualified to have custody of Muslim children.
WIFE CANNOT LEAVE THE COUNTRY WITH THE CHILDREN WITHOUT PERMISSION OF THE HUSBAND
Foreign women married to national citizens are not free to leave the country with their children; their children must remain in the UAE unless the court decides otherwise. Islamic Shari’a does not allow a divorce wife to travel outside the country with the children without permission of the husband or a court order. If the husband is dead, the wife can leave the country with the children only if the guardian of the children, who has been appointed by the father before his death, or a guardian who has been appointed by a judge, permits the wife to travel with the children. If such permission is not granted, the wife might have to leave the country without the children. U.S. law cannot force a foreign country to bring the children back to the United States.
A HUSBAND MARRIED TO A FOREIGN WOMAN MAY DECIDE TO TAKE THE CHILDREN TO HIS COUNTRY AND STAY THERE
A Christian or Jewish woman who is married to a Muslim citizen of the UAE should know that if the husband travels with the children to his country and decides to stay there with the children, she is not afforded protection of U.S. law to bring the children back to the United States. For example, if the husband, who is national of UAE travels with his wife and their children to his country, and then chooses to stay in UAE with the children, the wife may not be able to bring her children back to the United States. The law of UAE will not allow the wife to bring back her children to the U.S. without permission of the husband.
Furthermore, she may not be able to stay in the United Arab Emirates since her status as resident is based on her husband’s sponsorship. If the husband withdraws his sponsorship, she would be subject to deportation without being able to bring her children with her. There is no guarantee that she will be able to obtain an entry visa to that country in the future.
CONVERSION OF ONE SPOUSE TO ISLAM
Under Islamic Shari’a, if a non-Muslim woman married to a non-Muslim man decides to convert to Islam, the marriage is suspended until her husband converts too. In theory, she could leave the non-Muslim husband and marry a Muslim man. This is perfectly legal under Islamic law, and it has a reference in the Qur’an, which reads: “O ye who believe [Muslims], when there come to you believing women refugees, examine them. Allah knows best as to their faith; if you ascertain that they are believers [Muslims], then do not send them back to unbelievers [non-Muslims]. They are not lawful [wives] for the unbelievers, nor are [the unbelievers] lawful [husbands] for them.” (Qur’an 60: 10)
If a non-Muslim husband converts to Islam, a new marriage is not needed. He can marry up to four wives at one time.
Under the rules of Islamic Shari’a, a daughter inherits half of her brother’s shares. When a husband dies, the widow inherits one-eighth of his assets if he has children. If he dies childless, the wife inherits one-fourth. The rest of his assets are passed on to the husband’s closest relatives. If no son is born of the marriage, daughters alone cannot inherit all the assets of their parents; in such a case, part of the assets goes to the sons of the father’s brother.
However, a non-Muslim woman marrying a Muslim man from the United Arab Emirates does not inherit anything if the husband dies unless she is mentioned in his will as a beneficiary. Such a will cannot be valid if its purpose is to deny a legitimate person from getting his or her share under Islamic law.
DISTRIBUTION OF ASSETS
In the event of divorce, the wife does not share in the marital assets. There is no distribution of assets in Islamic law. The only amount of money the wife receives in the event of divorce is the mahr as stipulated in the marriage contract. It is therefore very important for a woman who is embarking on marrying a male citizen of the United Arab Emirates to pay attention to the amount of mahr when she signs the marriage contract. Islamic Shari’a does not entitle the wife to share the assets of her husband no matter how diligent she was in protecting and promoting the family business.
You have to remember too that the husband is allowed to marry three other women. This tactic is often used by the husband to avoid divorcing his wife, since divorcing her would make him liable to the mahr. On the other hand, if the wife seeks divorce through khul’, she may have to give back the mahr to her husband.
I suggest that a woman looking to marry a Muslim man to do further research about her rights and obligations under Islamic law. She has less protection under Islamic Shari’a than U.S. law.
MUSLIM WOMEN ARE PROHIBITED FROM MARRYING NON-MUSLIM MEN
Under Islamic Shari’a, a non-Muslim man is not allowed to marry Muslim woman. The only way he can do so is to convert to Islam. The children of such union are Muslims, and all Muslims are, by virtue of the Islamic Shari’a, prohibited from leaving Islam. In certain Muslim countries, the penalty for leaving Islam is death by execution.
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
- Professor of Middle East Constitutional and Islamic law,
- Expert Consultant on Islamic divorce in US Courts and Canada,
- Expert Consultant on Hindu divorce in U.S. courts,
- Expert Consultant on Iranian Shi’a divorce in USA,
- Expert Consultant on Islamic finance.
Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.
Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;
Speaks, reads and writes several languages including Arabic, English, French and others.
Email: [email protected]
Email: [email protected]
Tel. (609) 915-2237
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