Prologue
On 15 April 2025, the brand new federal UAE legislation on private standing (Federal Decree Regulation No 41 of 14 October 2024) formally entered into power ( “2024 PSL”). This legislation absolutely replaces the 2005 Federal Act on Private Standing (Federal Regulation No. 28 of 19 November 2005 as subsequently amended) (“2005 PSL”). The brand new legislation marks the most recent step within the UAE exceptional wave of authorized reforms, significantly relating to private standing issues. It follows a sequence of serious developments at each the federal and native ranges. On the federal degree, this consists of the adoption of the legislation on Civil Private Standing (Federal Decree-Regulation No. 41 of three October 2022 on Civil Private Standing) (“2022 CPSL”) and its govt regulation. On the native degree, particular legislations had been adopted within the Emirate of Abu Dhabi, most notably the 2021 Regulation on Civil Marriages and its Results (as subsequently amended) (“2021 ADCML”), and its Procedural Regulation. These legislative efforts collectively handle what is usually known as “civil household legislation” (for additional particulars see earlier posts on this weblog right here, right here, right here, and right here). Along with the brand new 2024 PSL, these devices will collectively be known as the “Household Regulation Rules” (see Desk beneath).
This overactive legislative exercise has inevitably impacted on the articulation between the completely different legislative texts, each inside the federal framework and between the federal and native ranges. On the federal degree, there’s a want to contemplate the interplay between the 2024 PSL and the 2022 CPSL. On the intergovernmental degree, this extends to the interaction between these two federal legal guidelines and the 2021 ADCML.
The icing on the cake – or maybe the tipping level – is when personal worldwide legislation enters the equation. It’s because the above household legislation rules embrace provisions figuring out their scope of utility, and in some circumstances permit for the applying of international legislation below some circumstances. This essentially carry them into contact with the battle of legislation guidelines contained within the 1985 Federal Act on Civil Transactions (Federal Regulation No. 5 of 21 March 1985, as subsequently amended) (“1985 FACT”).
Furthermore, aside from the federal regulation on civil private standing, the opposite legislative texts additionally comprise detailed guidelines on worldwide jurisdiction. This results in additional interplay with the 2022 federal legislation on Civil Process (Federal Decree-Regulation No. 42 of 10 October 2022 on the Civil Process). This side, nonetheless, won’t be addressed on this publish. For a comparative overview of worldwide jurisdiction in divorce issues, see my earlier publish right here.
Desk of related legislative texts:
(*) One of many unresolved questions is whether or not the 2022 CPSL additionally applies in Abu Dhabi—no less than in a means that might override the provisions of the Abu Dhabi Regulation which can be inconsistent with the federal laws. This side is briefly addressed beneath.
It have to be acknowledged that the present framework is extremely complicated, marked with a number of layers of interplay, and at occasions, inconsistencies and unresolved questions. The goal of this quick publish is solely to spotlight these difficulties, significantly these regarding the scope of utility and the interaction with selection of legislation guidelines, leaving a more-in-depth evaluation for an additional event.
I. Improvements and clarifications
1. Scope of utility
Some of the important improvements launched by the brand new 2024 PSL is its clear delineation of its scope of utility, significantly in relation to the opposite foundational legislation, that’s the 2022 CPSL. Certainly, the latter has already outlined its scope by limiting its utility to household legislation issues between non-Muslims, whether or not nationals or foreigners. Accordingly, it may be inferred that 2024 PSL limits its scope to household legislation issues involving Muslims. That is explicitly acknowledged in respect of household relations involving UAE residents. As for non-citizens, since household relations of international non-Muslims are primarily ruled by the 2022 CPSL, the reference to “non-UAE citizen” in 2024 PSL needs to be understood as referring to “international Muslims”.
2024 PSL
2022 CPSL
Artwork. 1 [Scope of Application]:
(1) The provisions of this Regulation shall apply to UAE residents if each events of the connection or considered one of them is Muslim.
Artwork. 1 [Scope of Application]:
(1) The provisions of this Decree-Regulation shall apply to non-Muslims who’re nationwide residents of the United Arab Emirates, and to non-Muslim foreigners residing within the state […]
Artwork. 1 [Scope of Application]:
(3) The provisions of this Regulation shall apply to non-UAE residents […]
(*) All translations are based mostly on the formally adopted variations, with modifications made the place mandatory. Personal underlines and Italics.
2. Events’ settlement
One other level price highlighting is that each federal private standing legal guidelines comprise provisions suggesting {that a} sure diploma of celebration autonomy is permitted. Nevertheless, the extent of this autonomy stays unclear. This subject shall be mentioned beneath.
2024 PSL
2022 CPSL
Artwork. 1 [Scope of Application]:
(2) The provisions of this Regulation apply to non-Muslim UAE residents until […] they comply with apply one other legislation permitted by the laws in power within the State.
Artwork. 1 [Scope of Application]:
(2) The individuals ruled by the provisions of this Decree-Regulation … could agree to use different laws regulating the household or private standing issues at present in power within the State as a substitute of making use of the provisions of this Decree-Regulation.
Artwork. 1 [Scope of Application]:
(3) The provisions of this Regulation shall apply to non-UAE residents until […] another legislation that has been agreed to be utilized, as permitted by the laws in power within the State.
3. Risk of making use of international legislation
Lastly, just like the 2022 CPSL and the now-repealed 2005 PSL, the 2024 PSL additionally permits for the applying of international legislation. What is especially noteworthy, nonetheless, is that the formulation initially discovered within the repealed 2005 PSL was not reproduced within the newly adopted 2024 PSL, regardless of its inclusion – albeit with some modifications – within the 2022 CPSL (see the underlined portion beneath). The explanations for this divergence stay unclear.
2024 Private Standing Regulation
2022 Civil Private Standing Regulation
Artwork. 1 [Scope of Application]:
(3) The provisions of this Regulation shall apply to non-UAE residents until considered one of them invokes the applying of his legislation [….] (*)
Artwork. 1 [Scope of Application]:
(1) The provisions of this Decree-Regulation shall apply to non-Muslims who’re nationwide residents of the United Arab Emirates, and to non-Muslim foreigners residing within the state, until considered one of them invokes the applying of his legislation, with regard to issues of marriage, divorce, successions, wills, and institution of filiation, with out prejudice to the provisions of Articles (12), (13), (15), (16), and (17) of the Federal Regulation No. (5) of 1985[on Civil Transactions] (**).
(*) The Gender biased formulations discovered within the authentic texts are maintained.
(**) Artwork. 1(3) of the now-repealed 2005 PSL acknowledged as follows: “The provisions of this Regulation shall apply to non-UAE residents, until considered one of them invokes the applying of his legislation, with out prejudice to the provisions of Articles (12), (13), (15), (16), (17), (27) and (28) of the Federal Regulation No. (5) of 1985 on Civil Transactions”.
The numbered articles concern respectively, battle of legislation guidelines in issues of marriages (12), divorce (13), upkeep (15), guardianship and different establishments of safety of individuals with restricted capability and absentees (16), successions and wills (17), in addition to public coverage (27) and failure to show international legislation (28).
II. Ambiguities and protracted issues
1. Ambiguities
a) Scope of utility
i) The 2021 ADCML and its 2022 Procedural Regulation
Some of the essential factors considerations the connection between federal and native legal guidelines. As beforehand talked about, the Emirate of Abu Dhabi took the initiative in 2021 by enacting its “Regulation on Civil Marriage and Its Results”. This legislation – initially titled the “Private Standing Regulation of Non-Muslim Foreigners” – outlined its scope of utility in a extra restrictive method in comparison with the 2022 CPSL. Whereas the latter applies to each international and native non-Muslims, the 2021 Abu Dhabi legislation was restricted, as its title suggests, to international non-Muslim solely.
2021 ADCML (earlier than modification)
2022 CPSL
Artwork. 1 [Definitions]:
Foreigner: Any male or feminine non-Muslim foreigner, having a domicile, residence or place of business within the Emirate.
Artwork. 1 [Scope of Application]:
(1) The provisions of this Decree-Regulation shall apply to non-Muslims who’re nationwide residents of the United Arab Emirates, and to non-Muslim foreigners residing within the state […]
Civil Marriage: A union that’s meant to be of indefinite length in response to the provisions of this Regulation, between a international man and girl, each non-Muslim.
Just a few weeks after its adoption, the 2021 ADCML was amended. Notably, along with the change of the title as talked about above, all references to “foreigners” and “international non-Muslims” had been changed with the extra impartial phrase of “individuals coated by the provisions of this legislation“. Furthermore, new jurisdictional guidelines had been adopted (Artwork. 17bis). Regardless of this modification, and considerably surprisingly, the amended legislation doesn’t solely outline “individuals coated by the provisions of this legislation” in an ambiguous method (see some essential feedback right here), but additionally it continues to outline civil marriage as union “between a international man and girl, each non-Muslim”. This has strengthened the impression that each the unique legislation and its subsequent amendments had been enacted with out thorough consideration of their inside consistency or of the broader authorized context during which they’d function.
2021 ADCML (after modification)
Artwork. 1 [Definitions]:
Civil Marriage: A union that’s meant to be of indefinite length in response to the provisions of this Regulation, between a international man and girl, each non-Muslim.
Individuals coated by the provisions of this legislation: Foreigners and Nationals, non-Muslims, whether or not male or feminine. (*)
(*) The unique ambiguity within the formulation is maintained in goal.
In 2022, a Procedural Regulation (“2022 Procedural Regulation”) was adopted with the intention of clarifying, inter alia, the scope and utility of the 2021 ADCML. Nevertheless, this instrument has launched extra inconsistencies and ambiguities than it has resolved. That is significantly evident with regard to the definition of “civil marriage”, in addition to the ratione personae and ratione materiae of each the 2021 ADCML and its accompanying 2022 Procedural Regulation.
Abu Dhabi 2021 Regulation (after modification)
The 2022 Procedural Regulation
Artwork. 1 [Definitions]:
Civil Marriage: A union that’s meant to be of indefinite length in response to the provisions of this Regulation, between a international man and girl, each non-Muslim.
Artwork. 1 [Definitions]:
Civil Marriage: Marriage that’s concluded and registered below statutory legal guidelines and rules, with out bearing in mind of any specific non secular legislation.
Individuals coated by the provisions of this legislation: Foreigners and Nationals, non-Muslims, whether or not male or feminine
Individuals coated by the provisions of this legislation: Foreigners and non-Muslims Nationals, whether or not male or feminine
Article 5 (Individuals coated by the provisions of this legislation):
The provisions of this legislation govern civil marriages and their results, in addition to all issues regarding the civil household in response to the next circumstances:
1) Non-Muslim residents
2) A foreigner who holds the nationality of a rustic that doesn’t primarily apply Islamis Sharia in issues of non-public standing […] Within the case of a number of nationalities, the nationality to be taken under consideration shall be the one used based mostly on the individual’s standing of residence within the State.
3) The place the wedding is concluded in a rustic that doesn’t primarily apply Islamic Sharia provisions in issues of non-public standing [….]
4) The place the wedding is concluded in accordance with the provisions of civil marriage.
5) Some other case for which a choice is issued by the Head of the Division.
Issues of interpretation and utility generated by the ambiguities and inconsistencies of the 2021 ADCML and its 2022 Procedural Rules have already been addressed on this weblog (see right here, right here, and right here). These points significantly concern the applying of those devices to international Muslims, a chance permitted below the 2021 ADCML and its 2022 Procedural Rules as confirmed by current case legislation, however not allowed below the 2022 CPSL.
ii) Constitutional implications
Given the differing scopes of utility, a vital subject has arisen: whether or not the 2022 CPSL overrides the native legislation on this respect. In different phrases, does the Federal Civil Private Standing Regulation additionally apply in Abu Dhabi?
From a constitutional perspective, the reply needs to be affirmative (see Article 151 of the Federal Structure). Nevertheless, the difficulty stays largely unresolved. In observe, decrease courts in Abu Dhabi seem to provide little weight to the federal legislation, making use of the native legislation and its rules as a substitute. (The Abu Dhabi Supreme Courtroom appears to comply with a barely completely different strategy, as on some events it cited the 2022 Federal Regulation on Civil Private Standing. For examples, earlier posts right here, and right here).
iii) Influence of the 2024 PSL
The state of affairs, nonetheless, modifications considerably with the adoption of the 2024 PSL. It’s undisputed that this new federal legislation applies in Abu Dhabi as effectively. The absence of any native regulation on private standing (apart from the 2021 ADCML and its 2022 Procedural Regulation) makes the applying of the brand new federal legislation self-evident. Subsequently, even when one had been to argue (for the sake of debate) that the 2022 CPSL doesn’t apply in Abu Dhabi, it’s going to nonetheless be mandatory to watch how Abu Dhabi courts will reconcile the brand new legislation, which explicitly applies to Muslims (no matter their nationality or whether or not their nation of origin applies Islamic sharia in private standing issues), with the prevailing native rules. A typical case can be a Muslim couple from Europe or elsewhere the place Islamic Sharia doesn’t primarily apply in issues of non-public standing, or Muslims from Muslim jurisdictions who obtained married below the 2021 ADCML, however then one of many events claims the applying of the 2024 PSL as a result of they’re Muslim, and due to this fact topic to the federal and never native legislation.
b) The Events’ settlement
As talked about above, each federal legal guidelines permit the events to “agree” to use “one other legislation permitted by the laws” (2024 PSL) or “different laws regulating household or private standing issues” at present in power within the UAE (2022 CPSL). The formulations used listed below are extremely problematic, as their actual that means stays unclear.
As an illustration, it’s unclear, whether or not the phrase “laws in power” consists of additionally native legal guidelines, notably the 2021 ADCML. Assuming that the 2022 CPSL doesn’t override the 2021 ADCML, may events residing in Dubai agree to use it? This stays unresolved.
Furthermore, an open query additionally considerations the shape that such an settlement should take. Is an express settlement required, e.g., one that’s formally recorded within the marriage contract? Or can consent be implied, such {that a} celebration’s reliance on the provisions of a given legislation is enough to deduce tacit settlement?
Lastly, and extra importantly, it’s not clear whether or not “non-UAE residents” below the 2024 PSL, which applies primarily to Muslims (see above), can be allowed to decide on the applying non-Muslim legislation. Whereas this may be considerably “tolerated” in issues of marriage or divorce because the observe now in Abu Dhabi clearly exhibits (see earlier publish right here, though the boundaries of such “tolerance” stays definitely unclear notably in different Emirates. From a broader perspective, see examples cited in Béligh Elbalti, “The Recognition and Enforcement of International Filiation Judgments in Arab International locations”, in Nadjma Yassari et al. (eds.), Filiation and the Safety of Parentless Youngsters (T.M.C. Asser Press, 2019), 397), such a chance appears to be inconceivable in issues of successions, giving the longstanding place of UAE courts to contemplate that the Federal Private Standing Regulation – which is essentially based mostly on Islamic Sharia – ought to apply each time one of many events (the deceased or the inheritor) is Muslim (for detailed analyses and overview of relevant case legislation, see Béligh Elbalti, “Relevant Regulation in Succession Issues within the MENA Arab Jurisdictions – Particular Concentrate on Interfaith Successions and Distinction of Faith as Obstacle to Inheritance”, 88(4) RabelsZ 2024 748, 751).
2. Persistent issues
Two are significantly related right here, each concern (a) the applicability of international legislation, and (b) the interaction of the household legislation rules with personal worldwide legislation.
a) Applicability of international legislation
A key distinction between the 2021 ADCML and the 2022 CPSL (in addition to the 2024 PSL) lies in the truth that the previous excludes the very utility of international legislation, rendering the 2021 ADCML instantly and routinely relevant in all disputes that enter into its scope of utility (it have to be acknowledged, nonetheless, {that a} current Abu Dhabi Supreme Courtroom’s ruling suggests in any other case. Upon examination, although, the Courtroom’s reference to selection of legislation guidelines doesn’t have any tangible implication on the above acknowledged conclusion). The one exception considerations issues of succession and wills, for which, a reference to selection of legislation guidelines is explicitly supplied for inside the legislation itself.
2021 ADCML (after modification)
2022 CPSL
Article 3 [Scope of Application] (*) (**):
(1) If the wedding is concluded in accordance with this legislation, it shall be the relevant legislation governing the consequences of the wedding and its dissolution.
(2) This legislation shall apply to wills and succession issues regarding individuals topic to its provisions, supplied that the property or the bequeathed property is positioned inside the State.
Artwork. 1 [Scope of Application]:
(1) The provisions of this Decree-Regulation shall apply to non-Muslims who’re nationwide residents of the United Arab Emirates, and to non-Muslim foreigners residing within the state, until considered one of them invokes the applying of his legislation, with regard to issues of marriage, divorce, successions, wills, and institution of filiation […]
Article 11 [Distribution of Estate]:
(3) However paragraph (2) of this Article [testate succession], any inheritor of the international deceased could request the applying of the legislation governing the property in accordance with the provisions of [1985 FACT], until a registered will gives in any other case.
Article 11 [Distribution of Estate]:
(3) However paragraph (2) of this Article [testate succession], any inheritor of the international deceased could request the applying of the legislation governing the property in accordance with the provisions of [1985 FACT], until a registered will gives in any other case.
(*) It’s price noting that article 3 in its authentic type was much like that of Article of the 2022 CPSL. It acknowledged as follows: “Until the foreigner requests the applying of their nationwide legislation, the court docket shall apply this legislation to foreigners in issues regarding marriage, divorce, inheritance, wills, and the institution of parentage.”
(**) See additionally Article 5 of the Procedural Regulation cited above.
This doesn’t solely give rise to issues of inconsistency with the federal private standing legal guidelines, but additionally with the 1985 FACT.
b) Interaction with selection of legislation guidelines
That is arguably the primary subject that is still unresolved regardless of the assorted reforms and amendments. As talked about above, the federal legal guidelines permit “one of many events” to invoke the applying of “his legislation”. Theoretically, if correctly invoked, the international legislation would apply as a substitute of the federal provisions. Nevertheless, this chance raises three core points:
1) who is strictly meant by “one of many events” (ahadihim)?
2) what is supposed by “his legislation” (qanunihi), and
3) what’s the present relevance of selection of legislation guidelines governing household issues as set out within the 1985 FACT?
i) That means of “one of many events”
Relating to 1), there’s a vary of diverging opinions. As an illustration, the Explanatory Report of the now-repealed 2005 PSL referred to the “adversary celebration” (al-khasm). Sure strands in literature, contra legem, counsel that this considerations any celebration, however solely when each of them share the identical nationality. Case legislation, nonetheless, reveals extra various eventualities: courts addressed the difficulty of the applying of international legislation no matter whether or not the events maintain the identical nationality or not, and when the international is invoked by any of them. But, to the perfect of our data, UAE courts haven’t supplied a definitive reply to this query, usually focusing as a substitute on whether or not the celebration’s declare might be accepted or not.
ii) The That means of “his legislation”
Relating to 2), case legislation has largely clarified that “his legislation” refers back to the lex patriae. Nonetheless, ambiguity stays in circumstances involving events of various nationalities. Previous to 2020, the primary connecting consider issues of marriage and its dissolution was the lex patriae of the husband. It was thus unclear whether or not the spouse may invoke the applying of “her legislation” or whether or not she ought to declare the applying of the lex patriae of her husband, when the latter based mostly his declare on UAE legislation. In any case, the place a celebration holds a number of nationalities, Article 24 (nonetheless in power) states that the lex fori (UAE legislation) shall apply.
Nevertheless, in 2020, an modification to the 1985 FACT launched important modifications, shifting away from lex patriae as the primary connecting consider private standing. Notably, articles 12 and 13 dealing respectively with marriage and its dissolution now seek advice from lex loci celebrationis. Furthermore, Article 17 coping with successions and wills grants appreciable weight to professio juris, permitting an individual in testate successions to designate the legislation that shall govern their property. These modifications have additional deepened the discrepancy between the federal private standing rules and the selection of legislation provisions contained within the 1985 FACT.
iii) Relevance of selection of legislation guidelines
Relating to 3), an on account of what was acknowledged above, resolving conflicts of legislation and coordinating the applying of the assorted legislative devices has develop into significantly troublesome with out considerably stretching the wording, and arguably, the meant that means of the legislation. This issue is particularly evident when the lex loci celebrationis differs from the events’ lex patriae.
Article 1(2) of the 2022 CPSL presents someway higher articulation by together with a two-part clause: “until one of many events invoke the applying of his legislation, with out prejudice to the provisions of Articles (12), (13), (15), (16), and (17)” of the 1985 FACT. Nonetheless, this articulation turns into problematic when each events share the identical nationality however have concluded their marriage overseas.
In any case, each legal guidelines stays silent on the results of the events invoking his lex patriae when it conflicts with the legislation designated below the battle of legal guidelines guidelines included within the 1985 FACT.
Epilogue
In observe, these theoretical complexities are sometimes resolved in a much more radical and pragmatic means: international legislation isn’t utilized, even when validly invoked by one or each events.
It’s in opposition to this backdrop that one can perceive the rationale behind the adoption of civil household legislation regimes and the current adoption of the 2024 PSL: reasonably than refining the prevailing conflict-of-law mechanisms, these devices goal to sidestep them altogether by providing a self-contained and instantly relevant various.
