Question:
I am a Muslim woman married to a Muslim man for two years. I have two sons who are between 8 and 9 years old. My husband left the house 4 months ago and I am the one who pays the expenses of the house and the children.
My questions: (1) Are these reasons sufficient to obtain a divorce before the Sharia court? (2) How can I prove prejudice? (3) If I get the divorce, shall I lose custody? (4) Do I have the legal right to claim all the money I spent on the house and children? Please advise.
Answer:
I would advise the questioner the following:
Separation due to prejudice, discordance and for Abstention from support, are reasons for divorce as per the UAE Personal Status Law.
In the case of divorce due to prejudice and as per Article 122 of the mentioned law, the prejudice shall be established by the legal means of proof (witnesses, documents, emails, WhatsApp messages, etc.) and by the court judgments rendered against one of the spouses.
The hearsay testimony is accepted if the witness explained, or it was understood from his statement that the prejudice is widespread in the spouses’ life environment as decided by the court. A hearsay testimony to negate the prejudice is not accepted.
The testimony of a male or female witness, except the testimony of an ascendant against a descendant or vice-versa, shall be accepted if the witness fulfills the conditions set forth by law for testimonial evidence.
As per Article 156 of the Personal Status Law, the right of women to fosterage of a child shall end upon his reaching the age of eleven years, if a male, and thirteen years, if a female, unless the court deems that extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest.
You will be granted the custody, because the 2 sons are still in the age of custody and as per law you have the priority regarding this matter, unless you have any reason which is stated by law and prevents you from maintaining the custody.
The mother’s custody is forfeited for one of the reasons listed in Article 152 of the law by a violation of one of the conditions required by the Articles 143 and 144 in the custody in general, which are the loss of reason, honesty and the ability to raise, maintain and care for the young child, or the mother suffers from a serious infectious disease, or she is sentenced to a penalty in one of the crimes of honor or the female custodian marries a foreigner on behalf of the young child, unless the court assesses otherwise for the interests of the child in custody.
You have the right to claim the money you spent on yourself, the house and the children, because as per Articles 67 & 78 of the law, Alimony to the wife is due as of the date of refrainment from payment when due as a debt on the husband, independently of a court judgment or agreement. It is not forfeited except by payment or discharge. Alimony of the small child who has no financial resources is on his father until the marriage of the girl or until the boy reaches the age at which his fellow-mates earn their living, unless he is a student continuing his studies with normal success.
