Important Things to Know About Guardianship

in the UAE

Author: Dr. Hassan Elhais

The personal status matters in the UAE are regulated by Federal Law No. 28 of 2005 (UAE Personal Status
Law), as amended, and Federal Law No. 5 of 1985 on Civil Transactions Law, as amended. Additionally, the
UAE government issued a specific family law, Federal Decree-Law no. 41 of 2022, applicable to non-
Muslim residents, in case none of them wants to apply his/her home country's law in the UAE. It will come
into force from 1st February 2023 and is based on the law previously issued by the emirate of Abu Dhabi,
Law No. 14 of 2021, which mainly applies to non-Muslims based in Abu Dhabi.

While the UAE Personal Status Law continues to apply to Muslims in Abu Dhabi and in the rest of the
UAE, the new law applies to the non-Muslims living in the country.

Personal Status Law, 2005

1. Custodian and Guardian

Under the UAE Personal Status Law, custody and guardianship are two different concepts. A custodian is an
individual who takes care of the child on a day-to-day basis and has physical custody of the child. For an
individual to be a custodian, they must have sound judgment, attained the age of maturity, must not be an
infidel, can raise the fostered child and provide for his maintenance and care, should be safe from dangerous
contagious diseases and not previously condemned for a crime against honour (Article 143).

According to Article 146 of the UAE Personal Status Law, the mother has the first right to be a custodian,
followed by the father. The right of the mother to be a custodian will end up on the daughter reaching 13
years and the son turning 11 unless the mother is unfit to take care of the children. The father will have the
right to claim custody only after the children cross the age threshold.

On the other hand, a guardian is an individual who is responsible for providing financial support, taking care
of education, travel and general upbringing of the children. Under Article 181 of the UAE Personal Status
Law, the right of guardianship is first to the father, and then to the grandfather.

2. Rights and Obligations of a Guardian

The guardian of the child has the right to keep the passport of the child with himself, except during the travel
of the child, during which the passport should be handed over to the mother (Article 157).

The custodian also may not travel with the child outside the country except with the written approval of the
guardian and if the guardian refuses to give his consent, the matter can be submitted to the judge under
Article 149 of the UAE Personal Status Law.
As mentioned above, the guardian is responsible for the child’s education, general upbringing and providing
related financial support.

The guardian will also have visitation rights towards the child. Under Article 107 of the UAE Personal
Status Law, the judge has the power to issue an order which will fix the maintenance of the wife and
children, determine who the custodian will be and set out the right of visiting the child by the other person.

Under Decision No. 3 of 2021 On the Adoption of the Manual of Procedures Organising Personal Status
Matters in Dubai Courts (Dubai Decision), which applies only to Dubai, the judge determining the visitation
rights, shall, in his order related to visitation, specify the visitation days, time, place, description, and right
holder, whether during school days, holidays, or vacations, and whether or not it includes off-site visits.

The judge may rule or order the overnight stay of the child under custody with the person entitled to
visitation unless the interest requires otherwise.

Personal Status Law for Non-Muslims, 2023

Under Federal Decree-Law No. 41 of 2022, custody and guardianship are made to be the same concept and
are granted equally to the mother and the father. Accordingly, under Article 10(2) of the Law, the
responsibility of raising the child until he/she reaches 18 years of age is distributed equally between the
parents. However, upon divorce, the expenses of the children while in custody with the mother may be borne
by the father, for not more than 2 years, as per Article 9(7) of the new law.

Conclusion

Spouses getting divorced is a tough situation and where children are involved, it becomes more complicated.
It is advisable to obtain legal advice from family law experts who will guide you on the best next steps,
providing optimal results for you and your family.

Legal Update:
The above information might not apply if both parties are non-muslim. Starting from the 1st of February
2023, UAE issued specific family law to be applied between non-muslim expatriate residents in case none of
them wanted to apply his/her home country's law in the UAE. To know more information about this law,
please feel free to click this link.

Related Links
Law on Family Matters for Expatriates living in the UAE: Part I
Under what conditions are divorces denied in the United Arab Emirates?
Let us Have a Look at New Amendments in UAE Family Law!

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