In the United Arab Emirates (“UAE”), the Federal Decree-Law No. (41) of 2022 concerning Civil Personal Status for Non-Muslims (“Decree-Law”) provides a modern, civil framework for family matters, aiming to align the nation with international best practices for its diverse non-Muslims population. However, a key area of legal inquiry is how this new law interacts with the provisions of the UAE Federal Law No. (5) of 1985 as amended by Federal Decree-Law No. 30 of 2020 (the “Civil Transactions Law”, or “Civil Code“), which is one of the major substantive laws in the UAE.

The Legislative Provisions

1.   Article 1(1) of the Decree-Law states that its provisions apply to “non-Muslim UAE citizens and non-Muslim foreigners residing in the state, unless any of them adheres to the application of the law of their home country, with regard to the articles of marriage, divorce, inheritance, wills, and proof of parentage, without prejudice to the provisions of Articles (12), (13), (15), (16), and (17) of Federal Law No. (5) of 1985 referred to above.“

2.   Article 13 of the Civil Code states that: “The law of the state where the marriage was performed shall govern the personal and financial effects entailed by the marriage,” and “The law of the state where the marriage was performed shall govern divorce by the husband, divorce officiated by the judge and separation.“

Interpretation

The Decree-Law seems to offer a straightforward choice between UAE Civil Code and one’s home country law, while the Civil Code directs courts to apply the law of the place of marriage (lex loci celebrationis). It reveals that these laws have establish a layered framework of choice.

The crucial phrase is “without prejudice to” in Article 1(1) of the Decree-Law. This legal term is not a suggestion but a directive to preserve the existing legal provisions. It means that the Decree-Law does not override the Civil Code’s conflict-of-laws rules.

This creates a hierarchical system of choice:

·         Layer 1 (The Elective/Primary Option): Non-Muslims can now explicitly choose the new, secular UAE civil personal status law as the governing framework for personal status matters.

·         Layer 2 (The Default/Alternative Options): If neither of the above options is chosen or is successfully proven, the court will fall back on the Civil Code. This includes applying the law of the place of marriage (Article 13) or the law of nationality (Article 11) depending on the specific matter.

The “without prejudice” clause ensures that Article 13 of the Civil Code acts as a mandatory baseline or an anchor. It provides a default rule (the law of the place of marriage) that a court can apply if the parties’ choice of law under the Decree-Law is not properly invoked or proven.

For a non-Muslim residing in the UAE, navigating this legal landscape requires a multi-layered approach. The key is to understand that while legal autonomy has been expanded, the court’s application of foreign law is not automatic.

Documents and Evidence Required

To invoke foreign law under the Decree-Law, a party must be prepared to meet evidentiary requirements. A client may need to prepare the following documents well in advance of any court filing:

i.             A complete and current text of the specific foreign law provisions to be applied (e.g., divorce laws, inheritance rules).

ii.          The legal text must be officially authenticated by the relevant authorities in the home country (e.g., Ministry of Foreign Affairs).

iii.           This authenticated document must then be attested by the UAE Embassy in the home country and subsequently by the UAE’s Ministry of Foreign Affairs and International Cooperation.

iv.          A full and accurate legal translation of the authenticated text into Arabic by a certified translator in the UAE.

v.            The party must be prepared to prove to the court that the foreign law is still in force and is applicable to their specific circumstances.

Decide early in the process whether to proceed under the new UAE civil personal status law or to petition for the application of home country law.

If opting for foreign law, the burden of providing the requisite law is on the party making the request. A failure to provide properly authenticated and translated documents will likely result in the court applying the default UAE law.

Be aware that even if all procedural requirements are met, the application of foreign law is subject to the overriding principle of UAE public order. Any provision of foreign law that directly contradicts a fundamental public policy of the UAE will not be applied.

Written by  Mr. Sanjeev Kandathil