Who will take care of your kids? – Nita Maru

Sharia law, and more particularly the UAE Personal Affairs Law, governs the issues pertaining to guardianship, inheritance and succession matters.

There is a separation between the roles assigned to each parent. Sharia law dictates that guardianship always remains with the father, whereas the reverse applies in most, if not all, Commonwealth jurisdictions. With respect to custody, the mother is the custodian until her son reaches the age of 11 and her daughter reaches the age of 13.

The custodian is simply the person who physically cares for the child on a day-to-day basis. The custodian is restricted in moving to another country in fulfilling this role and could potentially lose the right to be appointed as custodian if the move renders it difficult for the guardian to fulfil their role adequately.

The guardian, however, is the person who makes legal decisions regarding the child, including decisions pertaining to the child’s health, welfare and education. The role of guardianship also includes guiding the child in the terms of moral and religious obligations.

The majority of families – and mothers particularly – are not aware that on her husband’s death, guardianship does not automatically pass to her. On the death of the child’s father, sharia law dictates that in the absence of the child’s father, the child’s paternal grandfather is then appointed as guardian. The implication of sharia law ultimately means that decisions relating to their child’s educational, health and financial requirements will not be made by the mother.

However, the preparation of a will allows an alternative nomination of permanent guardianship to take place. The appointed guardians do not have to be resident in the UAE. However, the surviving biological parent must always be appointed as a permanent guardian initially. On the death of both parents, the appointment of a female guardian is preferred for female minor children.

The appointment of either a male or female guardian is acceptable for male minor children. It is vital to include the appointment of a permanent guardian within your will. It is particularly important for a father to prepare a will to ensure that the mother of his children is appointed as a permanent guardian and custodian. If a will is not prepared, sharia law applies by default and dictate who is appointed as guardian.

The opening of the DIFC Wills & Probate Registry on May 3, 2015 has created certainty for non-Muslim clients who want a guarantee that sharia law will not apply to provisions pertaining to guardianship. The opening of the registry means that you now have the option of preparing a will which specifically and exclusively deals with guardianship only, namely a Guardianship Only Will.

Please contact one of our experienced lawyers today for more details. Email us at info@twslegal.ae or call +971 4 448 4284.

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