UAE: reforms in personal status and criminal law
Ashish Mehta examines reforms in the UAE which enable expatriates to follow laws of their home country
The core pandemic years of 2020-22 forced many changes into several aspects of our lives, including our business and day-to-day transactions. Terms such as e-contracts and e-signatures, e-learning, remote working and Zoom/Teams became more commonplace than they ever were.
This was also a time of significant legal reforms in the United Arab Emirates (UAE), whereby a paradigm shift was made from the country’s traditional legal framework across many sectors. Such reforms in the said period were largely aimed at enhancing the ease of doing business in the country, while guaranteeing greater protections in matters of personal and criminal law.
Reforms in the Personal Status Law
In the UAE, the erstwhile position of laws regarding inheritance and divorce (inter alia) was set forth by the Federal Law No 28 of 2005 on Personal Status (the Personal Status Law). The Personal Status Law is largely based on the Islamic Shari’a and used to apply the principles thereof to personal matters (like marriage, succession and divorce) to all UAE nationals and expatriates, alike.
This however created several practical issues. One of them was that, a divorce decree issued by a court in the UAE might not be recognised in the country where the marriage was solemnised (or the home country of the expatriates involved), because the personal laws of the parties to the marriage were not followed.
In 2020, the Federal Decree Law No (29) of 2020 (FDL 29/2020) amended some provisions of the Personal Status Law and the Federal Law No 5 of 1985 on the Issuance of the Civil Transactions Law. The FDL 29/2020 essentially stated that Personal Status Law would apply to all expatriates, unless they wished to adhere to their native laws. Thereby, in matters of inheritance, marriage, alimony/maintenance, divorce and guardianship of minors, an expatriate-applicant can request the court to apply the laws of their native country.
Subsequently in 2022, to address concerns of non-Muslim expatriates, a new law was introduced. It was called the Federal Decree Law No 41 of 2022 On Civil Personal Status (FDL 41/2022). FDL 41/2022 applies to non-Muslim citizens and non-Muslim resident expatriates in the UAE, by default. However, non-Muslim expatriates may also seek application of their native laws for their personal matters like marriage, divorce, estate, will and proof of affiliation, or even the Personal Status Law. This gives flexible options for applicants to choose the law they wish to apply for their respective personal matters.
Regarding marriage and divorce, petitions for divorce filed under FDL 41/2022 are no longer referred to family guidance committees. Applicants may directly be referred to the court for decree of divorce at the first hearing.
Meanwhile, FDL 41/2022 granted greater gender equality for non-Muslim residents in various ways. Firstly, testimonies in court were subsequently held in equal parlance. With matters of estate and inheritance, the distribution of assets between men and women was thereafter ruled equal, as opposed to Islamic Shari’a which usually entails a woman would inherit half of what a man would receive. Additionally, both a husband and a wife now have equal right to file for a divorce upon his or her own accord. In the case of divorce, both parents would also have the right to joint custody of a child until they reach 18 years of age.
As would be seen later herein, the criminal law reforms have decriminalised cohabitation between unmarried individuals. FDL 41/2022 addresses the issue of children born out of cohabitation and prescribes that affiliation of a new-born child shall be established by marriage or by identity of father or mother of the child. Accordingly, birth certificates may be issued in the name of either parent of a new-born child.
Reforms in criminal laws
The criminal law reforms happened in two phases. In the first phase certain provisions of the erstwhile Federal Law No 3 of 1987 on the Issuance of the Penal Law were amended by the Federal Decree Law No (15) of 2020 (FDL 15/2020) leading either to, decriminalisation of erstwhile offences or reduction in penalties for some.
Later, in 2021, an entirely new and revamped penal code was introduced under Federal Law No. 31 of 2021 (the New Penal Law). This replaced the Penal Law along with FDL 15/2020, entirely.
By Article 356 of the Penal Law, the act of sexual cohabitation without marriage (even between two consenting adults) was a punishable offence which was termed “the offence of indecent assault,” By FDL 15/2020, Article 356 was amended entirely and the provision of indecent assault was removed. Following this, it is no longer an offence in the UAE for consenting adults (of the opposite gender) to cohabit without marriage.
Consumption of alcohol
Traditionally trade and consumption of alcoholic beverages was firmly regulated. By the FDL 15/2020, Article 313 of the Penal Law was amended and some leniency was introduced. The consumption, possession or trading of alcoholic drinks are no longer punishable offences, so long as these acts are done in permitted places and as per applicable legislations.
In this context, each emirate of the UAE was empowered to frame its own regulations for consumption, possession and dealing with and trading in alcoholic beverages. For instance, in Dubai, one would still require a license to legally purchase alcoholic beverages from authorised outlets. However, the minimum legal age for purchase and consumption of alcohol is set at 21 years.
Further, Article 313 of the Penal Law previously criminalised consumption of food and drinks in public during the fasting hours in the holy month of Ramadan. Post reforms, such acts have been decriminalised as well and there are no longer such restrictions – business as usual.
By Article 335 of the Penal Law following FDL 15/2020), the act of attempted suicide was an offence punishable by incarceration of six months and/or a fine of AED 5000 (£1100). Post reforms, the competent court may exercise its discretion and order detention of a person convicted of attempted suicide to a rehabilitation facility.
New penal laws
The 2020 reforms of FDL 15/2020 were retained in the New Penal Laws as well. Previously, dishonour of bank-cheques in the UAE led to prosecution and penalization of the issuer of the cheques. By the New Penal Laws, dishonour of cheques is decriminalised.
Although many erstwhile offences were decriminalised, certain acts have been identified as offences too, with a view of maintaining overall peace and tranquillity in the state. Among these are the spreading of rumours and false news. Currently, sharing false or misleading information online is an offence punishable by one year imprisonment with a fine of AED 100,000 (£22,000). Penalties in varying degrees also may apply to individuals who operate ‘bots’ to spread misinformation online.
With regard to while collar offences, demanding or accepting bribes are punishable offences. These apply to public official, foreign public official or employee of an international organisation or even a manager or employee of a private organisation, with varying degrees of penalties.
Perjury in civil and criminal proceedings, publishing materials to influence proceedings, concealing or destroying evidence, failing to submit information despite request by court and acting in bad faith with respect to properties under enforcement proceedings, are still identified as offences with varying degrees of penalties.
These numerous reforms throughout the past few years reflect a big legislative shift in the UAE, aimed at betterment of lives of citizens and expatriates in the UAE. They also demonstrate how the principles of gender equality, tolerance of different beliefs and universalism are being promoted in the UAE. The reforms also aim to address fresh challenges that the digital world poses to individuals’ lives within the UAE.
Ashish Mehta is the founder and managing partner at Ashish Mehta & Associates, Solicitors amalawyers.com