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2019 | OriginalPaper | Chapter

13. United Arab Emirates

Author : Lena-Maria Möller

Published in: Filiation and the Protection of Parentless Children

Publisher: T.M.C. Asser Press

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Abstract

The Emirati Code of Personal Status of 2005 recognizes four grounds for establishing filiation (nasab): a valid marriage (usually circumscribed as ‘firāsh’), acknowledgment (iqrār), proof (bayyina), and scientific methods (ṭuruq ʿilmiyya). At the same time, these options are all limited by additional requirements that need to be fulfilled for a full parent-child relationship to emerge. Should both paternal and maternal filiation not be established, the child will be treated as ‘majhūl al-nasab’, i.e. of unknown filiation, with such a child sometimes also being referred to as a foundling (laqīṭ). Foundlings or abandoned children are a growing societal problem in the United Arab Emirates. They are protected by the state insofar as they are automatically awarded citizenship, thereby having access to the far-reaching governmental benefits available only to nationals. Nonetheless, these benefits have not solved the issue entirely, as foundlings and children of unknown filiation are still in need of a permanent caretaker. It is for this reason that the Emirati legislature passed the federal Foster Care Act of 2012, which comprehensively regulates questions regarding the protection of children without filiation. This specialized legislation has unified (i) the procedure for awarding and revoking foster care, (ii) the requirements for potential caretakers, and (iii) the rights and duties of caretakers; further, it allows for both married couples and single females over the age of thirty to foster children. Yet an analysis of the existing legal framework reveals that caretakers will primarily assume the role of custodian (ḥāḍin) rather than being granted full parental authority, including unlimited rights of guardianship (wilāya).

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previous chapter Tunisia

next chapter The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries

Federal Code of Personal Status no. 28 of 2005, Official Gazette no. 439 of November 30, 2015 (hereafter: Code of Personal Status); see also Möller 2016.

Federal Law on Care for Children of Unknown Filiation no. 1 of 2012, Official Gazette no. 537 of June 7, 2012 (hereafter: Foster Care Act).

See for example Dubai Court of Cassation, appeal no. 23/2005 of May 22, 2006 (on file with author) and Federal High Court, appeal no. 555/26 of September 12, 2005 (on file with author), both explicitly referencing the supreme position of Maliki law in the United Arab Emirates.

Article 2(3) Code of Personal Status; Shafi῾i legal doctrine comes third and Hanafi legal doctrine last.

Article 1(2) Code of Personal Status; theoretically, the code applies to non-Muslim citizens only insofar as their religious affiliation does not hold its own set of laws governing matters of personal status. In reality, however, virtually all Emirati citizens are Muslim.

According to the latest census of 2010, the United Arab Emirates’ total population numbers 8,264,070, of whom only 947,997 are national citizens, see United Arab Emirates National Bureau of Statistics, www.uaestatistics.gov.ae/ReportPDF/Population%20Estimates%202006%20-%202010.pdf (accessed June 6, 2017).

Al Tamimi 2003, pp 9–18; Möller 2015, pp 81–82, 86–87.

Ras al-Khaimah does not have a Court of Cassation; the final appellate court is the emirate’s Appeal Court.

Article 90(3) Code of Personal Status.

Article 90(1) Code of Personal Status.

Article 91 Code of Personal Status.

See also Abu Dhabi Court of Cassation, appeal no. 12/2009 of February 25, 2009 (on file with author); Abū Rakhiyya and Al-Jabūrī 2010, p 281; Maʿhad al-Tadrīb al-Dirāsāt al-Qaḍāʾiyya (2010) Al-Mudhakkira al-Īḍāḥiyya li-Qānūn al-Aḥwāl al-Shakhṣiyya [Explanatory Memorandum to the Code of Personal Status], Abu Dhabi, notes to Article 90 (hereafter: Explanatory Memorandum).

Explanatory Memorandum, notes to Article 91; see also Abū Rakhiyya and Al-Jabūrī 2010, pp 279–280.

Article 57 Code of Personal Status.

Article 60(2) Code of Personal Status.

Article 61(2) Code of Personal Status.

Article 39 Code of Personal Status; see also Abu Dhabi Court of Cassation, appeal no. 524/2008 of November 19, 2008 (on file with author).

See also Dubai Court of Cassation, appeal no. 35/2007 of March 4, 2008 (on file with author).

For the different categories of presumption/doubt (shubha) see Explanatory Memorandum, notes to Article 90; see also Dubai Court of Cassation, appeal no. 89/2007 of November 20, 2007 (on file with author) in which the marriage between a Muslim man and a Hindu woman was declared void while paternal nasab for their mutual son was upheld due to the husband’s lack of knowledge about his wife’s true religious affiliation.

Article 90(2) Code of Personal Status.

See further Sect. ‎13.3.1 below.

Article 27(1) Code of Personal Status.

Möller 2015, pp 161–164.

Article 144(1) Code of Personal Status.

See generally Arabi 2001, pp 147–167; Hasso 2009, pp 211–222; Al-Nasr 2011, pp 43–57.

Article 89 Code of Personal Status.

Article 89 Code of Personal Status, see also Explanatory Memorandum, notes to Article 89.

Explanatory Memorandum, notes to Article 89; see also Abū Zayd 2016, p 127.

Dubai Court of Cassation, appeal no. 105/2007 of December 4, 2007, cited in Abū Zayd 2016, pp 127–128.

Articles 96–97 Emirati Code of Personal Status.

Article 97(5) Emirati Code of Personal Status.

Abu Dhabi Court of Cassation, appeal no. 797/2010 of August 25, 2010 (on file with author).

Abu Dhabi Court of Cassation, appeal no. 99, 104/2012 of April 11, 2012, cited in Abū Zayd 2016, pp 129–130.

Abū Zayd 2016, p 129.

In a similar vein, the Abu Dhabi Court of Cassation also turned down a man’s request for DNA testing to potentially negate biological filiation between him and his child merely because he had already missed the rather short deadline for initiating a liʿān proceeding (one month according to the Code of Personal Status), see Abu Dhabi Court of Cassation, appeal no. 300/2011 of May 18, 2011 (on file with author). The court thereby upheld the child’s nasab and showed no interest in substituting denial of paternity through the procedure of liʿān with scientific means of proof.

Explanatory Memorandum, notes to Article 89.

Abū Rakhiyya and Al-Jabūrī 2010, p 284; see also Abu Dhabi Court of Cassation, appeal no. 156/2009 of June 3, 2009 (on file with author).

Articles 89, 92–95 Code of Personal Status.

Article 92 Code of Personal Status.

Explanatory Memorandum, notes to Article 92.

Abdallah Kaleeb, Attorney General and Chief of Civil Prosecution in Dubai, in an interview with the Emirati newspaper ‘Al-Imārāt al-Yawm’ of October 12, 2012 (see Salūm 2012).

Article 92(1)(a) Code of Personal Status; see also Dubai Court of Cassation, appeal no. 31/2005 of October 3, 2005 (on file with author), which revoked a man’s iqrār pronounced with regard to two boys once the court had established that the boys’ nasab was in fact known. In this rather curious case, an Emirati citizen had originally acknowledged two boys. At a later stage, he filed a case before the Dubai family court in order to revoke his iqrār, claiming that one of the boys was in fact his sister’s son (born to her husband who holds Iranian citizenship) and that the other was his stepbrother (or half-brother from the same mother, the term ‘akhūhu ghayr al-shaqīq’ is ambiguous here). The man argued that he had only provided the two with nasab in order to allow for them to work for the Emirati armed forces (which would have clearly been impossible for his nephew given that, due to his Iranian father, he did not hold Emirati citizenship). While the first instance family court turned down the man’s request, the competent appeal court revoked his iqrār, a ruling which the acknowledged sons appealed before the Dubai Court of Cassation. The court, however, confirmed the earlier judgment issued by the Appeal Court and argued that a major prerequisite of iqrār was that the acknowledged child is of unknown filiation, which did not hold true for the two boys whose fathers were known and cited by name in the judgment.

Article 92(1)(b), (c) Code of Personal Status.

Article 92(1)(d) Code of Personal Status.

Article 92(2) Code of Personal Status.

Judgment reported in Salūm 2012.

Explanatory Memorandum, notes to Article 92.

Article 92(2) Code of Personal Status.

Article 93 Code of Personal Status.

Article 94 Code of Personal Status.

See also Abū Rakhiyya and Al-Jabūrī 2010, p 285.

Article 80 Emirati Civil Code, Official Gazette no. 158 of December 29, 1985 as amended by Law no. 1 of 1987.

Federal Law on the Registration of Births and Deaths no. 18 of 2009, Official Gazette no. 503 of January 13, 2010.