Marriage is the union between two persons which is in the form of a legal contract. According to the Federal law no. 28 of 2005 of the United Arab Emirates (hereinafter referred to as ‘the law’), marriage is a contract entitling one spouse to have legal enjoyment with the other in order to protect his/her chastity and build a stable family under the husband’s care on grounds that enable them to muster its burdens in affinity and mercy. Marriage is therefore a union of two persons that is recognized by the society to be lawful and chaste. In an ideal society, this union through marriage is eternal but the reality is different.
The rate of breakdown and dissolution of marriage is very high. The contract of marriage is said to be dissolved if it contains an impediment contrary to its requirements or if something prevents its legal continuation. The law provides for certain requirements for a valid marriage such as the marriage should not be between two people who are so related that they fall under the prohibited degree of relatives or such other impediments or the free consent of both the parties, etc. Further, prevention of legal continuation refers to situations where it becomes impossible for the spouses in the marriage to continue to live together due to certain diseases or cruel behavior of one towards the other, etc. In such situation the marriage between the two parties is dissolved. Such separation may occur between the spouses either by divorce, dissolution or by death. But before finalizing the separation of the parties to a marriage it is the duty of the court to try to reconcile the spouses before it decides on separating them.
Once separated by divorce, the parties to the divorce cannot remarry each other. This impediment is placed for the spouses to take the contract of marriage seriously where they cannot get in and get out according to their whims and wishes. There is also an exception to this impediment that is if the divorced woman marries another man, consummation of marriage destroys the repudiations of the previous husband and thereafter if the woman is divorced by her husband in such case she can remarry her previous husband.
Apart from these, the law provides for two essential effects of separation or dissolution of marriage. The first is that of a waiting period known as ‘Idda’ while the seconds pertains to the ‘custody of the children of the marriage’.
The period of ‘idda’ that is the waiting period after the divorce is basically a period of time gap that is to be maintained between the separation from the spouse and the contracting of a new marriage or the meeting of any men. This period is to ensure the paternity of a child if the woman gets pregnant during this time period. Therefore it is basically to ensure that the woman does not have sexual relations with any other man during this period and therefore in case she is pregnant it is the spouse from her dissolved marriage who is the father of her child and he cannot question the same. Thus it is a protective provision for the women and the children.
In cases of revocable form of talaq (divorce), Idda practice serves another purpose also, it serves as a period of time during which the husband may revoke the talaq and resume their marriage.
This waiting period generally initiates from the time of separation but in case of suspicious copulation between the spouses, the period shall initiate since the last suspicious copulation. Depending on the cases and reasons for the separation, the period shall initiate accordingly. In case of abandonment, the waiting period begins from the date of abandonment; in case of judge-decided separation it begins from the date of separation, in case of death of the husband it begins from date of the death. Further, in case of deciding a divorce, separation, dissolution, the nullity of the contract or adjudging the lost husband dead, the waiting period shall start from the date the judgment becomes final.
As discussed above, the waiting period is provided for in order to ensure the paternity of the child in case the woman get pregnant during this period, therefore such period shall not apply to the women who have been separated from their spouses before the consummation of their marriages.
Where the marriage is consumated but the woman is not pregnant at the time of separation, the waiting period is to be calculated as follows:
- a. Three full cycles for the woman who is still having a menstrual cycle.
b. Three full months for the woman who has never had menstrual cycles or for the woman who has reached menopause, but if she menstruates before the end of the three months, she shall continue her waiting period for three additional cycles.
c. Three months for the woman whose menstrual cycle is long or if her menstrual cycle is irregular. If she has a regular cycle that she remembers, she shall calculate the waiting period accordingly.
d. The lesser of the three cycles or one year without menstruation for the woman whose menstrual cycle stops before menopause.
Apart from the period of ‘Idda’, another important effect of the dissolution of marriage is that of the custody of the children of the marriage. Marriage is the bond that forms the basis of initiating a family where the children born out of the marriage are nurtured and supported by the husband and wife together. This is the ideal situation which is broken by the separation of the spouses. On separation of the spouses the very important question that arises is regarding the custody of the children, as both the husband and wife have equal rights on the child it is always a matter of dispute.
The term ‘custody’ is defined by the law as the keeping, bringing up and taking care of the child without interfering with the right of the guardian of the person. Custody maybe of two types: legal custody and physical custody. Legal custody is where the court awards the custody to one parent and physical custody is used when the parent who does not have the legal custody only has a right to visit the child on weekends or specified days. The Personal Status Law also governs and regulates the custody rights of both the parents in the event of separation. Generally the custody rights are given to the mother, but again it is a flexible rule and the final decision of custody is taken by courts after considering all circumstances and determining what would be in the best interests of the child.
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