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New Personal Law Changes: A Guide for Divorcing Parents and Their Kids

A new change in the family law for Muslims in the UAE was brought about by Federal Decree Law No. (52) of 2023, which modified some parts of Federal Law No. (28) of 2005 related to personal status. This change marks a significant step towards a more just and progressive society in the UAE. The main focus of these amendments is to ensure the best interests and rights of children, as well as to establish methods to settle conflicts and achieve justice in issues of guardianship and inheritance among the UAE’s Muslim community.

In this article, we will explain the key amendments to the Personal Status Law regarding tutors and fosterers in the UAE.

What is Tutorship and Fostering in the UAE?

Tutorship is the legal authority and responsibility of a person to protect and manage the affairs of a minor or an incapacitated person. In the context of fostering, a tutor is the person who has the legal guardianship of a fostered child, who is a child that has been placed under the care of another person or family by a court order or an authorized institution.

Fostering is the act of providing a temporary or permanent home, care, and support to a fostered child. A fosterer is the person who takes care of the fostered child on a daily basis and may or may not be the same as the tutor. In most cases, the fosterer is a woman who is related to the child within the prohibited degrees of kinship, such as a mother, grandmother, aunt, or sister.

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How Does the New Amendment Affect Educational Authority?

One of the main changes introduced by the new amendment is the concept of educational authority, which is the right and duty of a person to supervise and guide the education and upbringing of a fostered child. The amendment recognizes the importance of the fostering mother’s role in the child’s development and grants her more authority and autonomy in this regard.

  • Mother’s Educational Authority:

According to the revised Article 148, the custodial mother can have educational authority over the fostered child if it is in the child’s best interest, unless the court decides otherwise. This means that the custodial mother can make decisions about the child’s schooling, extracurricular activities, and religious education, without the need for the tutor’s consent or approval.

  • Dispute resolution to Child’s Best Interest:

The amendment also provides a mechanism for resolving disputes related to the child’s best interests, in case of disagreement between the tutor and the fosterer, or any other concerned party. The matter can be brought before the court, who will decide based on the competence of the mother and the welfare of the child. The fostering mother’s right to educational authority is preserved unless the court rules otherwise.

How does the New Amendment Affect the Passport and Document Custody?

The new amendment also introduces some modifications to the rules regarding the passport and document custody of the fostered child, which are relevant for travel and identification purposes. The amendment grants autonomy to the male or female fostered child upon reaching the age of 18, allowing them to keep their passport or other relevant identification documents, unless the court decides otherwise.

This is a significant shift from the previous position, which gave the parent, usually the father as the guardian, the right to retain the child’s passport until the age of 21.

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How does the New amendment affect the execution of a Will Involving Heirs?

The last change introduced by the new amendment that affects tutors and fosterers is related to the execution of a will involving heirs. The amendment revises the conditions and scenarios under which a person can make a will to an heir, who is a person entitled to inherit from the testator by law.

According to the old Article 250, a will could only be made to an heir with the unanimous approval of all major heirs, and it would then be executable on the consenting heir’s share. This provision was very restrictive and limited the testator’s freedom to dispose of their property as they wished.

However, the new amendment introduces two distinct scenarios for the execution of a will involving heirs, as follows:

  • Approval of All Major Heirs: Similar to the original provision, a will can be executed if approved by all other major heirs, in which case it applies to the share of the consenting heir. This scenario preserves the principle of consensus and fairness among the heirs, and respects the testator’s wishes.
  • Court-Order: The amendment introduces a crucial change by allowing the court to enforce a will even without the consent of other heirs if the court finds that there is a greater interest that justifies the execution of the will.

This provision recognizes that there may be situations where the testator has a valid and significant reason to favor one heir over another, such as a special need, a debt, a service, or a moral obligation. The court will then decide based on the evidence and arguments presented by the parties, and the balance of interests and justice.

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Conclusion

The recent amendments to the family law for Muslims in the UAE signify a significant move towards a more equitable and progressive society. Overall, these amendments prioritize the well-being and autonomy of children while introducing mechanisms to resolve disputes and promote fairness in matters of custody and inheritance within the UAE’s Muslim community. The new law respects the UAE’s culture and beliefs, which will be applied to local Muslims and expatriate Muslims, while giving non-Muslims the option to adhere to their native laws.

For more information, please feel free to contact our family & divorce lawyers at HHS Lawyers in Dubai. They will assist you with any questions or concerns you may have.

Hazim Darwish

Hazim Darwish, is a Senior Partner of HHS Lawyers in UAE. Practicing law for almost a decade, he has in-depth knowledge on UAE legislation with particular expertise on legal drafting, contract drafting, labor disputes, family law, and regulatory compliance for business organizations. Hazim Darwish also provides counsel on legal rights and obligations in the UAE to clients, including individuals and businesses subject to investigation or prosecution under Criminal Law by major regulators.