Divorce is indeed a very delicate matter, and if children are involved, it
should be dealt with the utmost care and conscious. Family Lawyers of Dubai
herein wishes to address this reoccurring issue of custody of the child or
children, should the mother re-marries following UAE Shariah Law.
The very concern of this article is to understand the circumstances where the
custody held by the mother can be challenged by the father if she re-marries.
UAE Law apportions several rights and obligations to the parents concerning
their children. In usual circumstances, the father is always considered as the
guardian, whereas the mother is given the custody of the children.
Notwithstanding the foregoing, Courts of UAE will still pass a judgment bearing
in mind the best interest of the child as per Article 144 of the Federal Law
Number 28 of 2005 regarding Personal Status Law (the Personal Status Law) which
is stated here under:
If the custodian is a mother:
a. She should not get married to a foreign husband who has consummated the
marriage with her unless the court decides otherwise in the best interest of the
child; b. Must unite with the childs religion. If the father is the custodian:
a. He must have a female qualified to have custody; b. He must be an
unmarriageable relative of the child if the child is female; c. He must be of
the same religion as that of the child.
In line with the preceding, the guardian is responsible for the upbringing of
the child, whereas the custodian shall maintain regular daycare. In this
regards, all major decision regarding the childs education, financial or
residence shall be taken by the guardian in consonance with the custodian.
Generally, the custody granted to the mother for a girl below the age of 13
years and a boy 11 years of age. Nevertheless, the court may extend the care of
the children or may transfer it to the guardian, depending upon the
circumstances of the case and the childs best interest.
It is pertinent to note that the mother (custodian) shall maintain the custody
even post re-marriage until the father (guardian) files the case for custody.
Another significant provision Article 146 (6) allows the mother to retain the
custody of the children during the trial, until the judgment, the article reads
as follows:
The mother shall have the right of her childrens custody in case of a dispute
over the custody unless the court decides otherwise for the childs interest.
Lastly, even if the mother re-marries, she does not automatically lose the
custody of the child as per Article 152 of the Personal Status Law. It is
apposite to consider that the court has been given utmost discretion to act in
the childs best interest in any given circumstances.
Therefore, even in cases of re-marriage, the judge may allow you to retain
custody of the child if they are convinced that it is in the childs best
interest. Besides, your ex-husband shall file the case for custody within six
months from the date of knowledge to seek custody of the child, unless there are
reasonable grounds of failure to file the custody claim.
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