Corresponding
to 17 Shawal 1426 H.
On
Personal
Status
Federal
Decree-Law No. 8 dated 29/08/2019
Federal
Decree-Law No. 5 dated 25/08/2020
Federal
Decree-Law No. 29 dated
27/09/2020
,
and
Federal
Decree-Law No. 52 dated
02/10/2023
We,
Khalifah Bin Zayed Al Nahyan, President of the United Arab Emirates State,
Pursuant
to the perusal of the Constitution; and:
Federal
Law no. 1 of 1972 on the Jurisdiction of the Ministries and the Powers of the
Ministers and its amending laws;
Federal
Law no. 10 of 1973 on the Federal Supreme Court and its amending laws;
Federal
Law no.6 of 1978 on the establishment of Federal Courts and the transfer of the
jurisdictions of the local courts in some of the Emirates to these Federal
Courts and its amending laws;
Federal
Law no. 17 of 1978 on Organization of the cases and procedures of appeal in
Cassation before the Federal Supreme Court
and
its amending laws;
Federal
Law no.3 of 1983 on the Federal Judicial Authority and its amending Laws;
The
Penal Law issued by Federal Law no.3 of 1987;
The
Civil Transactions Law issued by Federal Law no. 5 of 1985 and its amending
laws;
Federal
Law no.22 of 1001 on Notary Public and its amending laws;
The
Law of Evidence in Civil and Commercial Transactions, issued by Federal Law no.
10 of 1992
;
The
Law on Civil Procedures, issued by Federal Law no. 11 of 1992;
Federal
Law no. 21 of 1997 on Fixing the Dowry in the Contract of Marriage and its
Expenses; and
Acting
upon the proposal of the Minister of Justice and Islamic Affairs and Wakfs, the
approval of the Council of Ministers and ratification of the Federal Supreme
Council;
We
have promulgated the following Law:
The
provisions of Article 1 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 29 dated
27/09/2020
,
to read as follows:
1-
The present Law shall apply to all events occurring subsequent to the coming
into force of its provisions.
It
shall retrospectively apply to divorce certificate attestations and divorce
cases on which no final judgment is issued.
2-
The provisions of this Law shall apply to the citizens of the United Arab
Emirates State unless non-Muslims among them have special provisions applicable
to their community or confession.
3-
The provisions of the present Law shall apply to non-citizens, unless any of
them insists on implementing the law of their country law, without prejudice to
the provisions of Articles (12), (13), (14), (15), (16), (17), (27) and (28) of
the Civil Transactions Law promulgated by Federal Law No. (5) of 1985.
1-
In understanding, interpreting or construing the legislative provisions of this
Law, the principles and rules of the Muslim doctrine shall be consulted.
2-
The provisions of this Law shall apply on all matters dealt with herein, in
words and context. For the purposes of interpretation and completion of their
provisions, the doctrinal school of thought from which these matters derived
shall be consulted.
3-
In the absence of a text in this Law, judgment shall be given in accordance with
what is widely known of Malik’s doctrine, then Ahmed’s, then El
Shaffei’s, then Abi Hanifa’s doctrine.
Unless
otherwise provided, lunar computation shall be adopted in calculating the time
limits mentioned in this Law.
In
the absence of any text in this Law regulating the procedures of any matter, the
provisions of the Civil Procedures Law and the Law of Evidence in Civil and
Commercial Transactions shall apply.
The
State courts shall have jurisdiction on Personal Status litigations in which
citizens, or aliens, having a domicile or residence or place of business in the
State, are defendants.
The
State courts shall have jurisdiction on Personal Status lawsuits raised against
an alien who has not, in the State, a domicile or residence or place of
business, in the following instances:
1-
Where the lawsuit is an opposition to a marriage to be contracted in the
State.
2-
Should the lawsuit concern a claim in rescission or annulment of a marriage, in
repudiation or in divorce and the claim is introduced by either a citizen wife
or a wife having lost her citizenship, whenever any of the two have a domicile
or residence in the State, against her husband who had a domicile, residence or
place of business in the State, whenever the husband had abandoned his wife and
established his domicile, residence or place of business abroad or had been
deported from the State.
3-
If the lawsuit concerns a claim of alimony to the parents, the wife or th minor
whenever they have in the State a domicile, residence or place of
business.
4-
Where the lawsuit concerns the affiliation of a child, having in the State a
domicile or residence, or is related to the guardianship on the person or
property, whenever the minor or the person to be interdicted has, in the State,
a domicile or residence or if the absent had therein his last domicile,
residence or place of business.
5-
Should the lawsuit concern a matter of Personal Status and the plaintiff is a
citizen, or an alien having in the State a domicile, residence or place of
business, in case the defendant has no known domicile or residence in a foreign
country or if the national law is, in the State, the governing law.
6-
Where there are more than one defendant and one of them has, in the State, a
domicile, residence or place of business.
7-
If he has a domicile of choice in the State.
In
instances where the State courts have jurisdiction in accordance with Article 6
of this Law, the court of the plaintiff’s domicile, residence or place of
business shall be competent otherwise the court of the Capital.
1-
The first instance court of restricted jurisdiction, composed of a single judge,
shall have jurisdiction to settle Personal Status matters.
2-
The authentications’ judge shall authenticate the attestations delivered
by the court.
The
Minister of Justice and Islamic Affairs and Wakfs shall issue a regulation on
the procedures to be followed in attestations and their authentication.
1-
The court of the defendant’s domicile, residence or place of business
shall be competent and, in case there are several defendants, the court of the
domicile, residence or place of business of one of them shall have
jurisdiction.
2-
The court of the plaintiff’s or defendant’s domicile, residence or
place of business, or the conjugal domicile, shall have jurisdiction to examine
the lawsuits introduced by the children, the wife, the parents or the fostering
nurse, as the case may be, in the following instances:
a- Costs, wages and the like.
b- Fostering, visitation and related matters.
c- Dowry, trousseau, gifts and the like.
d- Divorce, divorce in return of money, discharge, rescission and separation
between spouses of all kinds.
3-
The court of the deceased’s last domicile, residence or place of business
in the State shall have jurisdiction to verify the evidence of heredity, wills
and liquidation of the estate. If the deceased has no domicile, residence or
place of business in the State, the competent court shall be the one in whose
jurisdiction one of the estate’s immovable property is situated.
4-
In matters of tutelage, the competence ratione loci shall be determined as
follows:
a- In matters of tutelage, the domicile or residence of the tutor or the minor;
in matters of guardianship, the last domicile or residence of the guardian or
that of the minor.
b- In matters of interdiction, the domicile or residence of the
interdicted-to-be.
c- In matters of absence, the last domicile, residence or place of business of
the absent.
d- In case any of the above-mentioned in paragraphs (a, b, and c) have no
domicile or residence in the State, competence shall be given to the court of
the claimant’s domicile or residence or the court in whose jurisdiction
the property of the person to be protected is located.
e- The court which ordered interdiction,withdrawal or cessation of tutorship
shall refer the case to the court of the minor’s domicile or residence in
order to appoint a tutor or guardian in case the domicile or residence of the
minor or the interdicted has changed.
5-
Should the defendant have no domicile, residence or place of business in the
State and it was not possible to designate the competent court, under the
foregoing provisions stated in the above paragraphs, competence shall be given
to the court of the plaintiff’s domicile, residence or place of business,
otherwise to the court of the Capital.
1-
Where the law requires an authorization or approval from the court, or to submit
the matter to the judge, the request for order shall be submitted to the court
of the applicant’s domicile or residence, unless otherwise provided by
law.
2-
Every interested person may, within one week from his notification of the order,
submit a grievance against such order; the court shall decide to uphold, amend
or cancel it and its decision shall be subject to appeal by all means specified
by law.
3-
The application for appointment of a trustee shall be submitted on a request for
order that has to be notified to the public prosecution and the potential
heirs.
Unless
otherwise decided by the court, a stay of execution shall not result from the
opposition to the implementation of judgments, summary or provisional decisions,
the minutes drawn-up or authenticated or the ratified conciliation reports
concerning alimony, fostering; or appeal thereof.
In
case of applying for the declaration of absence of a person, the litigation
shall be directed against the potential heirs of the absent, his proxy, the one
appointed to represent him and to the public prosecution.
Where
the Court of Cassation quashes the appealed judgment, totally or partially, it
shall have to decide on the merits of the case.
Shall
be excepted from the foregoing paragraph:
1-
Where the appealed judgment has been cancelled on grounds of nullity, due to a
reason related to the notification of the initial pleadings, the court shall, in
addition to the declaration of nullity, order to return the case to the court of
first instance for examination, after notifying the litigants, considering that
the appeal against the notification judgment concerns the claims submitted in
the case.
2-
In case the appealed judgment has decided the non-jurisdiction of the court or
the acceptance of an incidental plea that resulted in staying the procedures of
examining the case or in upholding the appealed judgment on these two counts and
the Court of Cassation quashed the appealed judgment, it has to remit the case
to the court that has rendered the appealed judgment unless it decides to
transmit to a circuit composed of other judges or to the competent court for
review of the case. The court to which the case is transmitted has to abide by
the decision of the Court of Cassation in the matter settled by it, unless it is
a second appeal, then, should the Court of Cassation quash the appealed
judgment, it has to decide on the merits of the case.
1-
The defendant or the person to be notified shall be served the notification at
his domicile, residence, place of business, elected domicile or wherever he is
present and if such notification is not possible, the court may notify him by
fax, electronic mail, registered mail with acknowledgment of receipt or by any
equivalent means.
2-
In case the process server does not find the concerned person at his domicile,
or residence he may deliver the notice to any of the persons living with him:
spouse, relatives sons -in-law; or if he does not find him at his place of
business he may deliver it to his superior at work or one deemed by him as
occupying a managerial
position.
Under all circumstances the notice should be delivered only to a person who
appears to have completed his eighteen years of age and who, in person or
through a representative, has no apparent interest in conflict with that of the
notified person.
3-
If the service processor does not find any of those having capacity to receive a
copy of the notice or if they refuse to sign the original acknowledging receipt
or to take delivery of a copy of the notice after verifying his identity or if
the place is closed, he must deliver, the same day, the copy to the officer or
his substitute in charge of the police station of the domicile of the person to
be served, his residence or place of business, as the case may be. In addition,
the service processor must address by mail to the concerned person, at his
domicile, residence, place of business or elected domicile, a registered letter
informing him that the copy has been delivered to the police station.
4-
The Court may, by exception to the foregoing paragraph, order the posting of a
copy of the notice on the bulletin board and on the door of the concerned
person’s place of residence, or of the place of his last residence, or, if
necessary, by publishing the notice in two dailies, issued in the State or
abroad in the Arabic or foreign languages, as the case may be.
5-
Where the court has verified that the person to be notified has no domicile,
residence, place of business, fax, E-mail or a postal address, it shall notify
through publication in two dailies issued in the State or abroad in the Arabic
or foreign languages, as the case may be, and the date of the publication shall
be considered as the date of notification.
6-
As concerns persons who have abroad a known domicile, residence or place of
business, copy of the notice shall be delivered to deputy-minister of Justice to
be notified to them through diplomatic channels or by registered mail with
acknowledgment of receipt.
7-
Publication of the notice shall be effective as of the date of notifying the
copy, dispatching of the Fax or E-mail, reception of the registered mail with
acknowledgment of receipt or as of the date of publication, in accordance with
the foregoing provisions.
1-
A judgment shall be notified to the condemned person either at his domicile,
place of business or residence, otherwise through the means specified in Article
14 of this Law, upon order of the Court that has rendered the judgment or upon
request from the party in whose favor the judgment was rendered.
2-
The period set for appeal of the judgment shall start the day following the date
of its issuance, if given in presence of the parties, or the day following
notification of the losing party, if the judgment was given in the supposed
presence of the parties.
3-
The period set for appeal and for further appeal to the Court of Cassation is
thirty days for each.
4-
The party in whose favor a judgment has been rendered for divorce, separation,
rescission, nullity of a contract or declaration of death of the absentee, must
notify the judgment to the losing party or the party against whom the judgment
was rendered, as if he was present, in order that the periods of appeal start to
run.
1-
The lawsuit concerning personal status matters shall not be admitted before the
court unless it has previously been submitted to the Family Orientation
Committee. Are excepted from this provision, matters concerning wills,
inheritance and like matters, summary and provisional lawsuits concerning
alimony, fostering, guardianship as well as cases that cannot be settled by
conciliation such as evidence of marriage or divorce.
2-
Where conciliation between the parties takes place before the Family Orientation
Committee, it shall be recorded in a minutes signed by the parties and the
competent member of the Committee. The minutes shall be sanctioned by the
competent judge, enforced as an executory deed and shall not be subject to any
means of appeal except if it is in violation to the provisions of this
Law.
3-
The Minister of Justice, Islamic Affairs and Wakfs shall issue the implementing
regulation organizing the work of the Family Orientation Committee.
1-
Engagement is a request and a pledge for marriage but is not considered
marriage.
2-
Engagement of an impeached woman, even if impeachment is provisional, is
prohibited and the engagement of a widow during the period of widowhood may be
attacked.
1-
Any of the parties may renounce to his engagement and if a prejudice is
sustained as a result of an unjustified renouncement, the injured party may
claim damages for the prejudice sustained. The person causing renunciation shall
be treated as the one who renounces.
2-
The party who renounces to the engagement or dies may recoup the dowry paid in
kind or, if it cannot be restituted as such, its equivalent at the date of
payment..
3-
Where the engaged woman purchases a trousseau for the total or part of the dowry
then the engaged man renounces to his engagement, she will have a choice either
to restitute the dowry or hand over its equivalent of the trousseau at the time
of purchase.
4-
Shall be considered among the dowry, gifts that are considered customarily as
part thereof.
5-
In case any of the parties unjustifiably renounces to the engagement, and in the
absence of a condition or custom, he shall not be entitled to recover any of the
gifts offered by him and the other party may recoup what he has offered.
6-
Where the renunciation is justified, the renouncing party may recover what he
has offered, if it still exists, or its amount at the date of payment, if it has
perished or is consummated, but the other party may recoup nothing.
7-
In case the engagement is terminated by mutual renunciation of the parties, each
one of them is entitled to recover what he offered, if still existing.
8-
Where the engagement is terminated because of death or for a reason not
attributed to any of the parties, or because of an impediment to marriage, the
gifts offered may not be restituted.
General
Provisions Of Marriage
Marriage
is a contract that legitimates enjoyment between spouses; its aim is protection
and forming a steady family under the husband’s care on basis ensuring to
the spouses the assumption of its charges with affection and compassion.
1-
Spouses are bound by the conditions exchanged except those legitimizing the
illicit or banning the legitimate.
2-
Where the contract of marriage contains a condition that is inconsistent with
the foundations of marriage, the contract is void.
3-
Where the contract is subject to a condition that is not inconsistent with the
foundations of marriage but is in contradiction with its requirements or is
considered illicit by law, the condition is void but the contract valid.
4-
If neither inconsistent with the foundations of marriage nor in contradiction
with its requirements and if not legally banned, the condition is valid and
should be fulfilled. In default thereof, the party benefiting of such condition
may rescind the marriage, whether he be the husband or the wife, and the former
shall be exempted from alimony, payable during the waiting period following the
dissolution of marriage, if the defaulter is the wife.
5
- Should any of the spouses conditions in the other a specific attribute but the
contrary was revealed, the party requiring such attribute may ask for rescission
of the marriage.
6-
Disavowal negates the effect of any condition unless it is written in the
registered contract of marriage.
7-
The right to rescind a contract is foreclosed if forfeited by its owner or if he
expressly or impliedly accepts the contrary. Shall be considered an implied
acceptance, the lapse of one year following the occurrence of the violation with
knowledge thereof and in case of irrevocable divorce.
1-
As a condition for the binding effect of a marriage, the man must be suitably
qualified to deserve the woman, but only at the formation of the contract. The
woman and her tutor are entitled to ask for the rescission of the contract on
grounds of lack of such qualification. The contract shall not be affected by the
disappearance of such qualification thereafter.
2-
If the engaged persons are of inadequate age; i.e. the man’s age is double
the age of the woman, or more than that, the marriage shall take place only with
the consent and knowledge of the parties thereto after securing the
authorization of the judge who will withhold it unless there is an interest in
such marriage.
Fitness
in religion is the measure of aptitude for the husband but, aside religion,
custom shall determine the other grounds of aptness.
1-
Aptness is a right to both the woman and her fully capacitated tutor.
2-
The remote, in rank, among tutors may not object for lack of aptitude except in
case of inexistence of the nearest tutor or his incapacity.
If
the man alleges his aptness or uses deceitful devices to give this impression or
if it was made a condition in the contract and it was thereafter revealed that
he was not apt, both the wife and her tutor are entitled to ask for
rescission.
The
right to ask for rescission is forfeited if the wife is pregnant, if a year has
lapsed since knowledge of the marriage or by previous consent of the one who has
the right to ask for rescission.
The
tutor may not ask for rescission on grounds that the dowry is below that paid in
equal condition.
1-
Marriage shall be officially recorded but, in consideration of a certain fact,
it may be established by other means of proof admitted by the
Shari’a.
2-
Marriage is conditioned upon the submission of a medical report from a competent
medical Committee formed by the Minister of Health, certifying that the spouses
are free of any disease that the law considers a ground for separation.
3-
The recording of the marriage shall be done by the authorized representatives of
the religious authority. The Minister of Justice, of Islamic Affairs and Wakfs
shall issue a regulation in their respect.
1-
The tutor may not conclude the marriage of the insane, the imbecile or persons
in their status without the authorization of the judge and the fulfillment of
the following conditions:
a- Acceptance of the other party to marry him after he has been informed of his
condition.
b- His disease is not transmitted to his progeny.
c- His marriage is in his interest.
2-
The fulfillment of the two conditions (b) and (c) shall be verified by a report
drawn-up by a competent Committee to be formed by the Minister of Justice,
Islamic Affairs and Wakfs in coordination with the Minister of Health.
A
male prodigal having attained the age of majority or one whose prodigality
accrued later may engage in marriage but the tutor may object to the portion of
the dowry in excess of the customary limit. Shall be excepted the foreclosure of
financial rights resulting from marriage.
The
provisions of Article 30 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 8/2019 dated 29/08/2019, to read as
follows:
1-
Capacity to marriage is completed by reason and maturity. The age of
maturity is 18 years, completed, unless the person concerned matures earlier in
conformity with the
law.
2-
Whoever legally matures before reaching the age of eighteen shall not marry
except in accordance with the regulations issued by a Cabinet decision upon the
proposal of the Minister of
Justice.
3-
Should the person having completed the age of eighteen request marriage but
failed to obtain the approval of his tutor, he may refer the matter to the
judge.
4-
The judge shall fix a period for the tutor, after his notification to appear
before him to hear his argument. Should he fail to appear, or his opposition to
the marriage is not convincing, the judge shall celebrate the marriage.
Whoever
gets married, according to Article 30, shall acquire capacity in all what
relates to the marriage and its effects, with the exception of forfeiture of his
pecuniary rights resulting from marriage.
The
tutor, in marriage, is the father then the agnates by themselves according to
the succession order: son, then brother, then uncle. Should two tutors be equal
in degree of kinship, the marriage that was concluded according to the
conditions set forth by any of them shall be valid. The one authorized by the
engaged female shall apppointed.
The
tutor must be a male of sound reasoning, fully capacitated, not prohibited on
account of pilgrimage and Muslim if tutorship is to be given to a Muslim.
Should
the most closely related tutor be interruptedly absent, his place of living
unknown or impossible to be contacted, tutorship shall pass to the one following
him in rank with the judge’s permission and, in case of prevention of
marriage, tutorship shall pass to the judge.
The
judge is the tutor of whoever has no tutor.
The
judge may not marry his ward for himself, his ascendant or descendant.
1-
Proxy in marriage is possible.
2-
The proxy may not marry for himself his principal unless it is so provided in
the procuration deed.
3-
Should the proxy go beyond the limits of his authority, the contract is
suspended.
The
elements of a marriage contract are:
1-
The two contracting parties (the husband and the Tutor).
The
tutor of the capacitated woman shall proceed with her marriage, with her consent
and the religious authorized official shall obtain her signature on the
contract.
The
contract is invalid in the absence of a tutor. If marriage has been consummated
the spouses shall be separated and the affiliation of the born child is
established.
As
a condition for the formation of marriage, the woman must not be permanently or
provisionally prohibited to the man.
Offer
and acceptance are subject to the following:
1-
The word “marriage” must be expressly used therein.
2-
They must be of immediate fulfillment and not indicating a future time.
Consequently, marriage shall not be concluded if made subject to an unrealized
condition, or if the contract is carried for a future date or the marriage is
temporary.
3-
The acceptance should meet, expressly or impliedly, the offer; the parties
maintaining their capacity until the formation of the contract.
4-
Unity of the meeting of the parties: in their presence, the acceptance should
verbally occur immediately following the offer and, between absents, the
acceptance should be during the meeting in which the letter is read before
witnesses or they be informed of its contents or by informing the emissary. The
acceptance shall not be late as to the offer if it they are not separated by
what amounts to rejection.
5-
Maintenance of the validity of the offer until the issuance of the acceptance.
The offeror has the right to withdraw his offer until the issuance of the
acceptance.
6-
Each of the contracting parties has to hear the words uttered by the other,
being aware that the objective is marriage although he did not understand the
meaning of such words.
In
case of incapacity to express oneself, writing shall be the substitute and, if
impossible, then a significant sign would suffice.
Due
to kinship, a person is prohibited to marry:
1-
his ascendant to the highest degree;
2-
his descendant to the remotest degree;
3-
descendants of the two parents or one of them, to the remotest degree;
4-
The first category of the descendants of one of the grandparents.
Due
to affinity, a person is prohibited to marry:
1-
one who was the spouse of one of his ascendants, to the highest degree, or one
of his descendants, to the lowest degree;
2-
ascendants of the husband, to the highest degree;
3-
descendants of his wife in a consummated marriage, to the lowest degree.
A
person shall be prohibited from marriage to his adulterous descendant, to the
lowest degree or his daughter proscribed for adultery.
A
man shall be prohibited to marry the one he cursed as adulterous, after
completion of the curse.
Shall
be prohibited from fostering what is prohibited by kinship or affinity excluding
what is excepted by law; under the two following conditions:
1-
Fostering should occur in the first two years.
2-
Fostering should reach five different feedings.
Shall
be temporarily prohibited:
1-
Grouping, even during the waiting period, between two women, should one of them,
supposed by a male, he would have been prohibited to marry the other.
2-
Grouping more than four women.
3-
The wife of another person.
4-
A woman in her waiting period from another man.
5-
A repudiated woman whose repudiation is not retractable, the repudiatior may not
remarry her repudiator unless after the expiry of her waiting period from
another husband who consummated a valid marriage.
6-
A prohibited woman on account of pilgrimage.
7-
A non-Muslim woman unless she is a believer in one of the Revealed
religions.
8-
The marriage of a Muslim woman from a non-Muslim.
Conditions
Of The Contract
1-
The validity of the marriage is subject to the presence of two witnesses, males,
of full capacity, sound minded, hearing the words pronounced by the contracting
parties and aware that the aim of such words is marriage.
2-
The two witnesses must be Muslims but two witnesses from one of the Revealed
religions may witness the marriage of a Muslim with a woman of such Revealed
religion.
Dowry
is what is offered by the husband, in money or property, for the purpose of
marriage. There is no minimum limit to it but the maximum is subject to the Law
on Dowries.
Notwithstanding
anything to the contrary, dowry is the property of the bride, she can freely
dispose of it.
1-
If the amount of dowry is validly determined in the contract, the amount spelled
out is due to the woman.
2-
In case it is not determined in the contract, invalidly stated or originally
denied, she is entitled to an equal dowry payable to a bride under the same
circumstances.
1-
Dowry may, in whole or part, be advanced or deferred upon the formation of the
contract.
2-
Dowry is due by virtue of a valid contract. It becomes certain by consummation
of the marriage, valid privacy or death. The deferred part of it shall become
due by death or repudiation.
3-
The repudiated woman, before consummation of the marriage, is entitled to half
the stated dowry and, if not determined, the judge may adjudge to her a
compensation not exceeding half the dowry payable under similar
circumstances.
1-
The wife may refuse intercourse until the due part of the dowry is paid.
2-
Should the wife accept intercourse before receiving her dowry from her husband,
it becomes a debt owed by him.
Mutual
rights and obligations between the spouses are:
1-
Legitimate mutual enjoyment of each other within what is allowed by law.
3-
Good treatment, mutual respect and compassion and preservation of the family
welfare.
4-
Care of the children and their education thus assuring upbringing on sound
basis.
Rights
of the wife towards her husband:
2-
Non-obstruction to complete her education.
3-
Non-opposition to visit her ascendants, descendants and brothers.
4-
Non-interference with her personal properties.
5-
Non-infliction of bodily or moral prejudice to her.
6-
Equitable treatment between her and the other wives, in case the husband has
taken more than one wife.
The
provisions of Article 56 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 8 dated 29/08/2019, then they have been replaced once again by
virtue of Article 1 of Federal Decree-Law No. 5 dated 25/08/2020, to read as
follows:
Rights
of the husband towards his wife shall be as
follows:
1-
Supervising the house and preserving its
assets.
2-
Suckling his children from her unless there is an
impediment.
Marriage
is either valid or invalid and the latter includes the defective and the void
contracts.
1-
A valid marriage is one in which all basic elements are present, its conditions
fulfilled and free of impediments.
2-
A valid marriage shall produce its effects upon its formation.
1-
A defective marriage is one where some of its conditions are missing.
2-
A defective marriage does not produce any effect prior to coitus.
A
defective marriage shall, after coitus, produce the following effects:
1-
The specified dowry or a reciprocal dowry under same circumstances, whichever is
smaller.
2-
Establishment of kinship.
3-
The prohibition because of affinity.
4-
Waiting period because of dissolution of marriage.
5-
Alimony as long as the wife ignores the defectiveness of the contract.
1-
A void marriage is the one where one of its basic elements is defective.
2-
Unless otherwise provided by this Law, a void marriage shall not produce any
effect.
1-
A woman having reached the age of full capacity is free to dispose of her
property and the husband may not, without her consent, dispose thereof; each one
of them has independent financial assets. If one of the two participates with
the other in the development of a property, building a dwelling place or the
like, he may claim from the latter his share therein upon divorce or
death.
2-
In donations, or similar dispositions, between the children or the wives
equality must exist unless the judge deems that there is an interest thereto.
Should there be no equality, the judge shall bring it into effect and shall
exclude it from the succession.
1-
Alimony includes food, clothing, dwelling, medical care, servicing charges for
the wife, if she is performing such services within her family, and all what the
conjugal relationship kindly requires.
2-
In assessing the amount of alimony, it shall be taken into consideration the
possibilities of the debtor thereof, the circumstances of the beneficiary and
the economic situation, in place and time, provided it does not fall below the
sufficiency level.
3-
In adjudging alimonies of all kinds, fostering and dwelling charges and all
conditions on which depends adjudging all these, eye-witnessing shall
suffice.
1-
Alimony may be increased or reduced according to the change of
circumstances.
2-
Save in exceptional circumstances the action in increment or reduction of the
alimony may not be heard prior to the lapse of one year as of the date of
deciding it.
3-
The increase or decrease of alimony is computed from the date of claim in
court.
The
continuous alimony has privilege over all debts.
Alimony
is due to the wife by virtue of a valid contract if she abandons herself to her
husband even inevitably.
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.
A
claim in alimony, for a past period exceeding three years from the date of
introducing action in court, shall not be heard unless it is imposed by
agreement.
The
judge shall, upon request of the wife, order to pay her a temporary alimony and
his decision shall be executory summarily and by force of law.
Alimony
and sheltering, during the waiting period (“idda”), are due to the
divorcee in a reversible divorce, in a non retractable divorce if the divorced
woman is pregnant and, if she is not, only sheltering is due.
No
alimony is due to the widow during her waiting period because of death of her
husband but she is entitled to live in the conjugal domicile during the said
period.
The
provisions of Article 71 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 8 dated 29/08/2019, then they have been replaced once again by
virtue of Article 1 of Federal Decree-Law No. 5 dated 25/08/2020, to read as
follows:
Alimony
to the wife shall be forfeited in the following
instances:
1-
Should she refuse to give herself to her husband without an excuse accepted by
the
Sharia.
2-
Should she abandon the conjugal domicile without an excuse accepted by the
Sharia
3-
If she forbids her husband to enter the conjugal domicile without an
excuse accepted by the Sharia
4-
If a judgment or decision is issued by the court to restrict her freedom in a
manner causing her husband to miss his right to have her giving him herself and
such judgment or decision is being applied.
5-
If she had breached her marital obligations that are prescribed by
law.
The
provisions of Article 72 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 8 dated 29/08/2019, then they have been replaced one again by
virtue of Article 1 of Federal Decree-Law No. 5 dated 25/08/2020, to read as
follows:
Going
out or to work as per law, Sharia or custom provisions or as necessary, shall
not be deemed a breach of marital obligations by the spouses, and the judge
shall take into account the family’s interest when deciding upon such
matter.
The
obligation of alimony to the wife is terminated upon the occurrence of any of
the following events:
3-
The death of one of the spouses unless it has been ordered by court
decision.
The
husband is under obligation to prepare to his wife, at his domicile, a
convenient dwelling commensurate with their standing.
The
provisions of Article 75 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 8 dated 29/08/2019, to read as follows:
The
spouses shall live in the conjugal home, unless otherwise stipulated in the
contract, and the judge shall take into account the interest of the family in
the event of a dispute between the spouses.
1-
The husband may accommodate, with his wife, in the conjugal domicile, his
parents and children from another woman as long as he is financially in charge
of them but provided no prejudice is caused to the wife from such
accommodation.
2-
The wife may not accommodate with her in the conjugal domicile her children from
another man unless they have no other caretaker, they may be harmed from
separation or by express or implied agreement of the husband, provided he has
the right to go back on his acceptance should he sustain a prejudice
therefrom.
The
husband may not accommodate with his wife another wife of his unless she accepts
provided she can go back on this acceptance whenever it becomes detrimental to
her.
1-
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.
2-
Alimony of the elder child unable to earn his living, because of a disability or
other cause, is on his father should the child have no other funds from which
his expenses could be drawn from.
3-
Alimony of the female is on her father if she divorced or has become a widow,
unless she has funds of her own or has a person in charge of her other than the
father.
4-
Should the child have no sufficient funds to meet his maintenance expenses, the
father is under obligation to complete the required amount within the
aforementioned conditions.
The
suckling expenses of the child are on his father, should the mother be unable to
nurture him, and this is considered as alimony.
The
child’s alimony is on his well-to-do mother if he lost his father, without
funds, or if he was unable to support him. The mother may revert on the father
for the amount spent in case he improves his financial capacity and the
expenditure were authorized by him or by the judge.
1-
A well-to-do child, male or female, grown-up or small, must provide alimony to
his parents if they have no funds from which they can spend.
2-
Should the parents’ funds be insufficient for their maintenance, the
children are under obligation to cover the shortage.
1-
The parents’ alimony shall be repartitioned between their children, each
in proportion of his ability.
2-
Should a child voluntarily spend money on his parents, he may not revert on his
brothers.
3-
Should the spending take place subsequent to a judgment ordering them to pay
alimony, he may revert on each one of his brothers according to what was
adjudged, provided he made these expenses with intention to claim back the
excess paid by him.
If
the child’s earnings are not in excess of his needs and the needs of his
wife and children, he shall be under obligation to add his parents, deserving
alimony, to his family.
Alimony
to each deserving payee shall be the obligation of his heirs from among his
well-to-do relatives according to their rank and their shares in the estate and
if the heir is insolvent the obligation shall pass to the succeeding heir with
due compliance to Articles 80 and 81 of this Law.
Should
the persons deserving alimony be several and the payee is unable to satisfy them
all, the wife’s alimony shall have precedence, then the children’s
alimony, followed by that of the parents, then the alimony of the
relatives.
1-
The alimony of relatives, other than the children shall be due as of the date of
the claim in court.
2
- The lawsuit claiming a past due alimony for the children from their father
shall not be heard if it goes back to a period in excess of one year from the
date of submitting the claim to court.
Alimony
To Those Who Have No One To Support Them
The
State shall be in charge of the alimony to those having no one to support
them.
Alimony
of the foundling of unknown parents shall be paid out of his funds, if any, and
in case he has no funds and no one benevolently proposed to spend on him, his
alimony shall be on the State.
Affiliation
shall be established by wedlock, by avowal, presumptions or through scientific
methods if bed-sharing is established.
1-
The child is born in wedlock if the shortest period of pregnancy has lapsed
since the valid marriage and it is not established that carnal knowledge was
impossible between the spouses.
2-
The affiliation of the child shall be established from suspected copulation if
he is born for less than the shortest period of pregnancy after the said carnal
knowledge.
3-
Affiliation of the born child shall be established to his mother upon evidence
of his birth.
4-
Once the affiliation is legally established, the action in disavowal shall not
be heard.
The
shortest period of pregnancy is one hundred and eighty days and the longest
period is three hundred and sixty five days, unless a committee of medical
physicians formed for the purpose decides otherwise.
1-
Acknowledgment of affiliation, even in death-bed, is evidence of consanguinity,
unless the acknowledged person is out of wedlock, under the following
conditions:
a- The acknowledged person is of unknown descent.
b- The acknowledging party is of full capacity, of sound judgment and of free
choice.
c- The difference of age between the acknowledging party and the acknowledged
may sustain the veracity of the acknowledgment.
d- The acknowledged person, of full capacity and sound judgment, approves the
acknowledging party.
2-
Affiliation is an acknowledgment of consanguinity in lineal descent made by the
father of an acknowledged non-adulterous person. Acknowledgment of affiliation
by the grandparent is not valid.
Should
the acknowledging party be a married woman or a woman in her waiting period, the
affiliation of the child to her husband is not established unless he consents or
there is corroborating evidence to this effect.
The
acknowledgment by the person of unknown descent of his father or mother shall
establish consanguinity if approved by the acknowledged or there is evidence to
this effect whenever the age difference allows such possibility.
Acknowledgment
of kinship, other than consanguinity in lineal descent, paternity or maternity
does not bind other than the acknowledging party unless approved or established
by evidence.
Curse
may only be uttered before the court in accordance with the rules as set forth
by law.
1-
Divorce by curse is permanent.
1-
The man may disavow affiliation of the child by throwing a curse within seven
days from his knowledge of birth provided he did not acknowledge expressly or
impliedly his paternity. Action for malediction shall be submitted to the court
within thirty days as of knowledge of birth.
2-
Where curse is for disavowal of affiliation, the latter shall be negated.
3-
Should the husband take the oath of malediction and the wife refused to take it,
refused to appear before the court or has been absent and it was impossible to
give her notice, the judge shall adjudge the negation of affiliation.
4-
The affiliation of the disavowed child because of malediction shall, after
issuance of the decision negating his affiliation, shall be reinstated if the
man retracted his curse.
5-
The court may resort to scientific methods to negate affiliation provided it has
not been previously established.
1-
The contract of marriage shall be rescinded if it includes an impediment that is
in contradiction with its requirements or the occurrence of something that
prevented its legal continuation.
2-
Disunion between the spouses occurs by divorce, rescission or death.
3-
Prior to deciding disunion between spouses, the court has to endeavor
reconciliation.
4-
Should the divorced woman marry another man with whom she has carnal knowledge,
the number of divorces pronounced by her previous husband shall be considered as
non existent.
1-
Repudiation is the dissolution of the valid contract of marriage in the form
legally prescribed.
2-
Repudiation takes place verbally or in writing and, in case of inability, by an
understandable sign.
The
provisions of Article 100 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 5 dated 25/08/2020, to read as follows:
Divorce
shall be initiated either by the husband or any one acting on his behalf by
virtue of a special power of attorney, or by the wife or any one acting on her
behalf by virtue of a special power of attorney, according to what was agreed
upon in the marriage contract, and it must be documented according to the
procedures followed in the
court.
The
divorce shall be established before the judge by evidence given by two witnesses
testify, or by avowal, and the judge shall issue his ruling after verifying the
fulfillment of either of said two
conditions.
Divorce
shall be deemed to be dated on the date of avowal, unless a previous date is
established to the court, and the consequences of divorce by avowal shall be
governed by Sharia rules.
1-
The repudiator must be of sound mind and have free choice.
2-
Repudiation done by a man of unsound mind due to a banned substance shall be
considered a choice.
Repudiation
of the wife may occur only if she is party to a valid marriage and she is not
within the waiting period (known as Iddah).
1-
Divorce subject to a condition precedent to do or depart from something shall
not be effective unless there is an intention to divorce.
2-
In the absence of an intention to divorce, there is no divorce in case of
perjury to an oath.
3-
A divorce made verbally, in writing or by sign, whether repeated or in
conjunction with a number, shall be construed to be once only.
4-
A divorce may not be contingent on the happening of a future event.
Repudiation
is either retractable or non-retractable:
1-
The retractable repudiation does not put an end to marriage unless after the
expiry of the waiting period (Idda).
2-
The non-retractable repudiation ends the marriage upon its occurrence. It may
take one of the following two forms:
a- Repudiation with right to remarry: The divorcee may not return to the man who
divorced her except after a new contract of marriage and a new dowry
b- Final and decisive repudiation: The divorcee may not return to the man who
divorced her except after expiry of the waiting period (Idda) from another
husband who had carnal knowledge of her pursuant to a valid marriage.
Every
repudiation is retractable except the repudiation completing the third,
the one occurring prior to sexual penetration and the one considered by law
final and decisive.
The
provisions of Article 106 have been abrogated by virtue of Article 2 of Federal
Decree-Law No. 5 dated 25/08/2020.
Upon
request of the concerned persons and after divorce, the competent judge issues
an order fixing the woman’s alimony during her waiting period as well as
the alimony of the children, determine the person who has the right to foster
the child and the right to visit the fostered child. This order is considered as
being of summary execution by force of law and the prejudiced party may appeal
this order by all means of appeal prescribed by law.
The
husband is entitled to get back his divorcee, should the divorce be revocable
and as long as she is within her waiting period. His right thereto is not
forfeited even if surrendered. Should the divorcee’s waiting period
expire, she may return to him by a new contract without the permission of her
tutor, if he refuses to give her in marriage to him, provided that her first
marriage from him has been concluded with the tutor’s consent or by order
of the court.
1-
Getting back a divorcee occurs verbally, in writing and, where impossible, by
sign as well as by action with intent.
2-
Retrieval shall be recorded and the wife should be informed of it during her
waiting period.
Divorce
By Agreement (Khul’)
1-
Divorce for consideration is a contract between the spouses whereby they agree
to terminate the contract of marriage against consideration to be paid by the
wife or by another person.
2-
The amount to be paid as a consideration shall be governed by the same rules as
dowry but it is not allowed to agree on forfeiture of the children’s
alimony or their fostering.
3-
Should the consideration to be paid in case of divorce by agreement be not
validly determined, divorce shall occur and the husband shall be entitled to the
dowry.
5-
By exception to the provisions of clause 1 of this Article, where the husband is
unduly obstinate in his rejection and it was feared not to observe God’s
will, the judge shall decide the “Mukhala’a” (divorce) against
an adequate consideration.
Validity
of the consideration for such divorce is conditioned upon capacity of the payor
and capacity of the husband to divorce.
Separation
On Account Of Defects
1-
Should one of the spouses find in the other a deep-rooted repulsive or harmful
defect such as insanity and leprosy, or those preventing sexual pleasure such as
impotence, obstruction of genital canals or similar defects, he may ask for the
rescission of the marriage whether this flaw existed prior to the contract or
occurred later.
2-
His right to rescission shall be forfeited if he had knowledge of the defect
before the contract or accepted it expressly or impliedly thereafter.
3-
However, the wife’s right to claim rescission on grounds of defects
preventing sexual pleasure shall not, under any circumstance, be
forfeited.
4-
The court shall examine, in chambers, the case of rescission of marriage on
grounds of sexual defects.
Should
the defects mentioned in Article 112 of this Law be not susceptible to
disappear, the court shall rescind the marriage immediately and without
delay.
Where
it is likely to disappear, the court shall adjourn the case for an adequate
period, not exceeding one year, and in case it does not disappear during this
period and the party claiming rescission insists, the court shall rescind the
marriage.
Each
of the two spouses is entitled to ask for separation in the following
instances:
1-
In case of deceit perpetrated by the other spouse or with his knowledge inducing
to the formation of the marriage contract. Intentional silence about a fact is
deceit if it is established that the deceived party would not have concluded the
marriage contract had he been aware of such fact.
2-
If it is established by a medical report the sterility of the other spouse,
after a marriage that lasted five years and after medical treatment, provided
that the claimant has no children and that he is not in excess of forty years of
age.
3-
If the other party is condemned for adultery or a similar offense.
4-
Where it is established that the other spouse contracted a contagious fatal
disease such as Aids or similar, so if it is feared that this disease be
contracted by the other spouse or their descendants, the judge must order their
separation.
1-
The assistance of a medical committee, specialized in detecting the defects for
which separation is claimed, shall be sought.
2-
Separation, in this chapter, is rescission.
Separation
Due To Non-Payment Of The Due Dowry
1-
The wife in a non-consummated marriage shall be adjudged separation due to
non-payment by her husband of the due dowry, in the following instances:
a- If the husband has no apparent funds from which the dowry could be
drawn;
b- If the husband is manifestly insolvent or of unknown status and the period
fixed by the judge for payment of her dowry has expired without payment.
2-
The wife shall not, after consummation of the marriage, be adjudged separation
for non-payment of her due dowry which shall remain a debt on her husband.
Separation
Due To Prejudice And Discordance
1-
Each of the two spouses is entitled to ask for divorce due to prejudice that
would make the continuity of the friendly companionship between them impossible.
The right of each of the spouses thereto shall not be forfeited unless their
reconciliation is established.
2-
In accordance with Article 16 of this Law, the Family Orientation Committee
shall endeavor the reconciliation of the two spouses and, in case of failure,
the judge shall propose reconciliation to the spouses. If this reconciliation is
not possible and the prejudice is established, the judge shall order
divorce.
The
provisions of Article 118 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 8 dated 29/08/2019, to read as
follows:
1-
If the prejudice is not established, the lawsuit shall be rejected, and if the
discordance is still continuing between the spouses, then the aggrieved party
may file a new lawsuit. If the Family Orientation Committee the judge were not
successful in reconciling them, the judge shall issue a judgment appointing two
arbitrators from among their parents, if possible, after asking each of the
spouses to nominate, in the next hearing at most, his arbitrator from among his
parents, if possible, otherwise from those who have the experience and ability
to reconcile. Should one of the spouses procrastinate in nominating his
arbitrator or abstain from attending this hearing, the judgment shall not be
subject to any appeal.
2-
The judgment appointing the two arbitrators shall include the starting and
closing dates of their assignment, provided it does not exceed ninety days
extendable by decision of the court. The court shall notify the two arbitrators
and the parties to the litigation of the judgment appointing the arbitrators and
shall ask each of them to take oath that he will perform his assignment with
equity and honesty.
The
two arbitrators have to find out the reasons of discordance and deploy efforts
to reconcile between the spouses. Abstention from any of the spouses to attend
the arbitration sitting, whenever notified of the date fixed for it, or the next
sittings if set at different intervals, shall not affect the progress of the
arbitrators work.
The
provisions of Article 120 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 8 dated 29/08/2019, then they have been replaced one again by
virtue of Article 1 of Federal Decree-Law No. 5/2020 dated 25/08/2020, to read
as
follows:
1-
If the two arbitrators fail to reconcile the spouses, the court shall present
the arbitrators’ recommendations to the spouses and invite them to
reconcile before issuing the judgment of separation. Should the spouses reach
reconciliation after the two arbitrators recommend separating between them and
before a judgment is issued, the court shall confirm that reconciliation.
2-
If reconciliation between the two spouses is impossible, and should the offense
be entirely on the husband’s part and separation is sought by the wife or
by both the husband and the wife, the two arbitrators shall recommend separation
by irrevocable divorce with an appropriate amount to be paid by the husband to
without prejudice to the marital rights owed as a result of marriage or
divorce.
3-
If reconciliation between the two spouses is impossible, the offense is entirely
on the wife’s part, and separation sought by the husband or by both the
husband and the wife, the two arbitrators shall recommend separation with an
appropriate amount estimated by them to be paid by the wife unless the husband
holds on to her. The court shall take into account the interest of the family in
this respect.
4-
if reconciliation between the two spouses is impossible, and both parties
participated in the offense, the arbitrators shall recommend separation without
any amount to be paid by any of the parties, or with an amount to be paid in
proportion to each one’s share in the offense.
5-
If reconciliation between the two spouses is impossible, and the case is not
clear as to who is the offender and if separation is sought by the husband, the
arbitrators shall recommend dismissal of his case; but if separation is sought
by the wife or by both parties, the arbitrators may choose either to separate
between them without any amount to be paid, or refuse separating them, as they
deem appropriate for the interest of the family and the children.
The
provisions of Article 121 have been replaced by virtue of Article 1 of Federal
Decree-Law No. 8 dated 29/08/2019, to read as
follows:
1-
The two arbitrators shall submit to the judge their reasoned decision that shall
include the extent to which each of the spouses offended the
other.
2-
Subject to the provisions of Clause (1) of Article (120) of this Law, the judge
shall rule according to the recommendation of the two arbitrators, if they
reached the same opinion; otherwise, the judge shall appoint other arbitrators,
or add a third whose opinion shall prevail. The court shall ask the new
arbitrator or the umpire to take an oath that he will perform his duties with
equity and
honesty.
3-
The judge shall amend the recommendation of the two arbitrators where it
violates of the provisions of this Law.
In
the case of divorce due to prejudice, the prejudice shall be established by the
legal means of proof 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.
Where
the wife asks for divorce, before consummation of marriage or legal privacy, and
she deposited the amount received as dowry, the gifts obtained and the amount
spent by the husband because of marriage, but the husband abstained from doing
so and in case the judge did not succeed in reconciling them, he shall order
separation against consideration (Khul’).
Separation
For Abstention From Support
1-
If the present husband abstains from supporting his wife and he does not have
apparent funds from which he can pay, within a short time, the due alimony, the
wife may ask separation.
2-
Should he allege to be insolvent but with no evidence as to his allegation, the
judge shall order immediate divorce. If he keeps silent as to his being solvent
or insolvent and insists on non-support, even if there is evidence of his
insolvency, the judge shall grant him a respite of not more than a month after
which, if he does not comply with his duty of support, the judge shall order
divorce.
1-
In case the husband is absent in a known place:
If
he has apparent funds, the alimony judgment shall be enforced on these
funds.
Where
he has no apparent funds, the judge shall warn him and grant him a respite not
in excess of one month to which shall be added the prescribed period of distance
and, in case he does not execute his duty of support or does not bring the
alimony, the judge shall order divorce after expiry of the respite.
2-
If he is absent in an unknown place, in a place difficult to reach or missing
and there is also evidence that he has no funds from which alimony could be
withdrawn, the judge shall order divorce.
The
husband may avoid divorce by submitting evidence of his solvency and his ability
to pay the alimony. In this case, the judge shall grant him the respite
prescribed in Article 125 of this Law.
The
husband may retrieve his wife, while she still is in her waiting period, if
there is evidence of his solvency and he shows his readiness to support his wife
by paying the usual alimony, otherwise the retrieval is not valid.
If
the lawsuit for non-support is brought to court more than twice and it is
established to the court the non-support in each and the wife asks divorce for
non-support, the judge shall order a non-retractable divorce.
Separation
Due To Absence And Disappearance
The
wife is entitled to claim a judicial divorce due to the absence of her husband
who has a known domicile or residence even though he has funds from which
alimony can be drawn. She will get a judgment in satisfaction of her claim only
after warning him: either to reside with her or have her move to live with him
or divorce her and provided he is given a delay of not more than one year.
The
wife of the disappeared, whose residence is unknown, is entitled to ask for a
judicial divorce and she will be granted relief only after investigation and
search for him and the lapse of one year as of the date of filing the
claim.
Separation
For Imprisonment
1-
The wife of the incarcerated, who is condemned by a decisive judgment to a
penalty restraining his liberty for a period of three years or above, is
entitled to ask the court, after the lapse of one year of his imprisonment, to
divorce him irreversibly even though he has funds from which she can
spend.
2-
Where the wife is also incarcerated but has been freed alone, she may ask for
separation, after the lapse of one year of her release, under the same
conditions mentioned in Clause 1 of this Article.
3-
In both the preceding instances, judgment for the wife is conditioned upon the
non-release of the husband during the examination of the case and that the
remaining period of his incarceration be not less than six months.
Separation
For “Ila’” And “Zihar”
The
wife is entitled to ask for divorce if her husband swore not to have sexual
relations with her for four months or more, unless he has such relations before
the expiry of the four months. Divorce in this case is non-retractable.
The
wife is entitled to divorce on grounds of “Zihar”.
The
judge shall warn the husband to expiate from “Zihar” within four
months from taking the oath. Should he refuse without giving a reason, the judge
shall order a non-retractable divorce.
In
examining the divorce case, the judge shall decide which provisional measures he
deems appropriate to take in order to secure alimony for the wife and the
children and all what relates to the fostering and visiting of children upon
request of any of the spouses.
The
Waiting Period (Al Idda)
“Idda” is an obligatory waiting period during which the wife remains
without marriage, as a result of separation.
1-
The waiting period starts as of the occurrence of separation.
2-
The waiting period, in case of doubtful copulation, starts as of the last sexual
intercourse.
3-
Waiting period in marriage shall begin from the date of separation, divorce or
death of the husband.
4-
In case of ruling divorce, separation, rescission, nullity of the contract or
judicial declaration of death of the disappeared, the waiting period starts as
of the time the judgment becomes final.
1-
The duration of the waiting period, for the woman whose husband from a valid
marriage died, even before consummation of the marriage, is four months and ten
days unless she is pregnant.
2-
The waiting period for a pregnant woman ends upon delivery or miscarriage.
3-
In a consummated marriage resulting from a void or suspected contract, if the
husband dies, the woman shall have to undergo the waiting period of the divorcee
to clear her uterus.
1-
There is no waiting period prior to consummation of marriage and valid
privacy.
2-
The waiting period for the non pregnant divorcee:
a- Three purities for those who have their menstruation and she is to be
believed at the expiry of this period within a reasonable time.
b- Three months for those who did not have at all their menstruation or those
who have reached the menopause and their menstruation stopped. Should the latter
see menstruation prior to the expiry of the period, the waiting period shall be
resumed for three purities.
c- Three months for extended blood secretion if the woman has no known menstrual
cycles but if she recalls having such cycle it shall follow it in computing the
waiting period.
d- The shorter period between three purities and one year without menstruation
for those whose menstruation stopped before reaching the age of menopause.
In
case the husband divorces his wife from a valid consummated marriage by his
unilateral will without a request from her, she is entitled to a compensation
other than the alimony paid during the waiting period depending on the financial
status of the husband provided it does not exceed a one-year alimony payable to
those in similar condition. The judge may order that it be paid by installments
depending on the degree of solvency or insolvency of the husband. In assessing
the amount thereof, the prejudice sustained by the wife shall be taken into
consideration.
1-
Should the husband die and the wife is in her retractable divorce waiting
period, she passes to the widowhood waiting period and the lapsed period shall
not be taken into account.
2-
Should the husband die while the woman is in her waiting period for repudiation
or rescission, she shall complete it and is not bound by the death waiting
period unless repudiation took place during the last illness, then the longest
of the two periods shall be taken into account.
Fostering
is to safekeeping the child, educate and ward him in a manner that does not
contradict the tutor’s right of tutelage over the person of the
child.
The
fosterer must satisfy the following conditions:
2-
having attained the age of maturity;
4-
ability to raise the fostered child and provide for his maintenance and
care;
5-
safety from dangerous contagious diseases; and
6-
not previously condemned for a crime against honor.
In
addition to the conditions mentioned in the above Article, the fosterer
must:
a- Not married, in a consummated marriage, to a man not related to the fostered
child, unless the court decides otherwise in the interest of the child.
b- Be of the same religion as the fostered child, with due compliance with
Article 145 of this Law.
a- He must have around him a woman able to be a fosterer.
b- Be related to the fostered girl with such close kinship prohibiting him to
marry her.
c- Be of the same religion as the fostered child.
Should
the fosterer be a mother of a different religion than that of the fostered
child, her fosterage shall be forfeited unless the judge deems otherwise in the
interest of the fostered child provided the period of fosterage ends upon his
completing the age of five whether he child is a boy or a girl.
1-
Fosterage of the child is a right to the mother, then to the females, within the
prohibited degrees of kinship, giving preference to those from the
mother’s side over these from the father’s side taking into
consideration the closest degree from both sides, with the exception of the
father, and the judge shall in his decision consider the interest of the
fostered child. In deciding who is the fosterer, the following order shall be
observed:
c-
The grandmother, from the mother’s side, and upwards.
d-
The grandmother, from the father’s side and upwards.
e-
The sisters, giving preference to the full sister, then to the stepsister from
the mother’s side, then the stepsister from the father’s side.
f-
The daughter of the full sister.
g-
The daughter of the stepsister from the mother’s side.
h-
The aunts from the mother’s side, in the same order as the sisters.
i-
The daughter of the stepsister from the father’s side.
j-
The daughters of the brother in the same order as the sisters.
k-
The aunts from the father’s side, in the above order.
l-
The mother’s aunts from the maternal side, in the above order.
m-
The father’s aunts from the maternal side, in the above order.
n-
The mother’s aunts from the paternal side, in the above order.
o-
The father’s aunts from the paternal side, in the above order.
2-
Where no fosterer is found among the above women, or if none is qualified,
fosterage shall pass to the male agnates, in the same order followed in
inheritance, giving preference to the paternal grandfather and his ascendants
(provided the sequence is not interrupted by a female ascendant) over the
brothers.
3-
If none of the above exist, the right to fosterage passes to the males, within
the prohibited degrees of kinship with the child other than the agnates, in the
following order: the maternal grandfather, the stepbrother from the
mother’s side, the son of the maternal stepbrother, the unilineal uncle
from the father’s side, then the maternal uncles by giving preference to
the consanguineous, then the unilineal uncle (his mother’s stepbrother)
from his father’s side, then the unilineal uncle (his mother’s
stepbrother)from his mother’s side.
4-
Should fosterage be refused by those entitled, male or female, the right passes
to the next entitled who shall be notified thereof by the judge and if he
refuses or keeps silent for fifteen days, the right passes to the next in
rank.
5-
Under all circumstances, is not entitled to fosterage, in case of difference in
sex, whoever is not within the prohibited degree of kinship with the child,
whether male or female.
6-
Unless the judge deems in the interest of the fostered child, the mother, in
case of litigation, is entitled to fosterage.
7-
In case of difference between the spouses and where the mother leaves the
conjugal domicile, even if the bond of marriage has not been dissolved, the
mother or the father may apply to have the children join him/her and the judge
shall decide in accordance with the children’s best interest.
In
the absence of the two parents and in case the fosterage is not accepted by
those entitled to it, the judge shall chose the adequate person from among the
relatives of the fostered child or others or one of the institutions qualified
for this purpose.
The
provisions of Article
(148)
were replaced by virtue of Article (1) of Federal Decree-Law No. 52 dated
02/10/2023 to read as follows:
1-
The father or else another tutor of the fostered child must look after his
affairs, discipline, orientation and education.
2-
Whoever is in charge of the fostered child’s alimony must provide the rent
of a dwelling for a woman fosterer unless the latter owns a dwelling in which
she resides or affected for this purpose.
3-
The female fosterer is not entitled to remuneration if she is the wife of the
fostered child’s father or is in her waiting period during which she is
entitled to alimony from him.
4-
As an exception to Clause (1) of this Article, the fostering mother shall have
the educational tutorship over the fostered child, in the interest of the
latter.
5-
In case any dispute arises with regard to the things that serve the best
interest
of the fostered child, any of the concerned person may bring the matter before
the magistrate of summary justice to issue his decision by an order on petition
taking into account the solvency of the tutor and without prejudice to the right
of the fostering mother to the educational tutorship.
6-
Should the interest of the fostered child require the transfer of the
educational tutorship from the fostering mother to the father or any other
person entitled to the proven tutorship over the fostered child, either may
refer the matter to the magistrate of summary justice to issue an order on
petition designating the person who shall have the educational tutorship over
the fostered child.
7-
In the event the fosterer of the fostered child is a woman within the prohibited
degrees of kinship other than the mother, and the tutor is not the father, the
female fosterer may – based on the interest of the child – bring the
matter before the magistrate of the summary justice to issue an order on
petition to designate the person who shall have the educational tutorship over
the fostered child.
8-
The provisions of this Article shall be without prejudice to the alimony
prescribed for the fostered child by virtue of the present Law.
The
fosterer may not travel with the fostered child outside the State except with
the written approval of his tutor. Should the tutor refuse to give his consent,
the matter shall be submitted to the judge.
1-
The mother, during her wedlock or during her waiting period after a a
retractable repudiation, may not travel with her child or move him from the
conjugal domicile without the written approval of his father.
2-
The mother may, after the waiting period, take the child to another city within
the State in case this move does not affect his education, is not prejudicial to
the father and does not cost him unusual effort and expense to be informed about
the fostered child’s condition.
1-
Should the fosterer be other than the mother, she may not travel with the child
without a written authorization from his tutor.
2-
The tutor, whoever he is, or another person, may not travel with the child
during fosterage without a written authorization of the fosterer.
3-
The fosterage of the repudiated mother may not be forfeited just because the
father moved to a city other than that in which the fosterer resides, unless the
move is for the purpose of settling, is not prejudicial to the mother and the
distance between the two cities does not allow the mother to see the fostered
child and return the same day by the usual transportation means.
The
fosterer’s right to fosterage is forfeited in the following
instances:
1-
Derogation to one of the conditions stated in Articles 143 and 144.
2-
In case the fosterer elects a domicile in another city thus making it difficult
for the tutor to attend to his duties.
3-
Should the person entitled to fosterage keep silent and do not claim this right
for a period of six months without excuse.
4-
Should the new fosterer live with the one whose fosterage has been forfeited for
a reason other than physical disability.
Fosterage
shall be reinstated to the one from whom it was forfeited whenever the cause of
it has disappeared.
1-
Where the fostered child is under the fosterage of one of his parents, the other
is entitled to visit and be visited by the child and accompany him wherever
decided by the judge provided he fixes the place and time and the person in
charge to bring the fostered child.
2-
Should one of the parents of the fostered child pass away or be absent, the
fostered child’s relatives, to a degree prohibiting marriage, may visit
him as decided by the judge.
3-
If the fostered child is with other than his parents, the judge shall designate
the person entitled to visit him from among his close relatives.
4-
The judgment shall be enforced coercively should the person with whom the
fostered child lives refuse to execute it.
5-
The Minister of Justice, Islamic affairs and Wakfs shall issue a regulation
determining the procedures to see, deliver and visit the fostered child provided
these do not take place in police stations or prisons.
In
case the persons entitled to fostering are more than one and they are all of the
same degree, the judge shall choose the one that is best for the child.
1-
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.
2-
Unless the interest of the fostered child otherwise require, the women fosterage
shall continue in case the child is of unsound mind or suffering of a disabling
illness.
The
provisions of Article
(157)
were replaced by virtue of Article (1) of Federal Decree-Law No. 52 dated
02/10/2023 to read as follows:
1-
Without prejudice to the provisions of Article (149) of this Law, the tutor may
keep with him the passport of the fostered child, except in case of travel,
where he should hand it over to the woman fosterer.
2-
The judge may order to maintain the passport in the hands of the woman fosterer
should he notice an obstinateness from the tutor’s part to refuse
delivering it to the woman fosterer in case of necessity.
3-
The woman fosterer may keep the originals, or true official copies of the birth
certificate and any other evidential documents, pertaining to the fostered
child, as well as his identity card.
4-
The male or female child who reaches the age of (18) eighteen calendar years
– with no objection related to the eligibility – shall keep his/her
passport or any other evidential documents pertaining thereto with him/her,
unless the judge otherwise decides.
Court
decisions concerning the affiliation and protection of the child and delivering
him to a custodian as well as the separation between spouses and like matters
pertaining to personal status, shall be enforced coercively even through the use
of force and forced entry of homes. The official in charge of execution shall,
in this respect, follow the instructions given to him by the judge of execution
in the court of the place of execution. The judgment, whenever required, shall
be re-executed.
The
judgment rendered against the wife to follow her husband may not be executed
coercively.
Every
person has capacity to contract unless this capacity is withdrawn or limited by
a law provision.
Is
considered as a minor:
2-
The insane, the imbecile and the prodigal.
3-
The missing person and the absentee.
Is
considered devoid of capacity:
1-
The undiscerning minor.
2-
The insane and the imbecile.
Is
considered lacking capacity:
Minor’s
affairs shall be attended to by his representative called, as the case may be,
Tutor, Guardian (which includes the named guardian and the one appointed by the
judge) or curator on the minor’s property.
Provisions
Relating To The Minor
A
minor is discerning or undiscerning.
The
undiscerning minor, according to this Law provisions, is the one who did not
complete seven years of age.
The
discerning minor is the one who has completed seven years of age.
Without
prejudice to the provisions of Articles 30 and 31 of this Law:
1-
The verbal acts of disposition of an undiscerning minor are absolutely null and
void.
2-
The verbal financial acts of disposition of a discerning minor are valid, if
purely beneficial to him; void if absolutely detrimental.
3-
The verbal financial acts of disposition of a discerning minor that are
vacillating between being beneficial or detrimental depend on
authorization.
1-
The tutor shall authorize the minor who has completed eighteen years of age to
take possession of the whole or part of his property to manage it.
2-
The court may, after hearing the guardian, authorize the minor who has completed
eighteen years of age to take possession of the whole or part of his property to
manage it.
The
authorized minor, whose acts are included in the authorization, is considered as
one who has the attained the legal age of maturity.
In
case the discerning minor completes eighteen years of age and finds himself
capable of sound judgment but the guardian refused to authorize him to take over
the management of part of his property, he may submit the matter to the
judge.
The
minor authorized by his guardian shall have to submit to the judge periodical
accounts of his acts.
Should
the interest of the minor so require, the judge and the guardian may cancel or
limit the authorization.
Every
person attaining the age of majority, enjoying his mental abilities and not
interdicted has full capacity to exercise his rights provided for in this
Law.
A
person shall attain the age of majority when he completes twenty one lunar years
of age.
After
attaining the age of majority, the minor is entitled to ask the guardian to
account for his acts during the period of guardianship.
Capacity
impediments are:
1-
Insanity: The insane is a person who has lost his mental faculties continuously
or at intermittent intervals. Imbecility is treated the same way as
insanity.
2-
Prodigality: The prodigal is a spendthrift person.
3-
Illness leading to death: It is the illness which impairs the human being from
continuing his usual activities and death is most likely to occur within one
year. Should he remain in the same condition for one year or more, without
deterioration, his acts are similar to those of a sound person.
4-
Shall be considered as an illness leading to death circumstances where the
person is surrounded by danger of death and where perishing is prevalent in such
circumstances even though he is not ill.
1-
Financial acts of the insane are valid if in a state of consciousness and void
after putting him under guardianship.
2-
Acts of the imbecile subsequent to his interdiction shall be governed by the
provisions applied to the acts of the discerning minor.
3-
Acts of the imbecile prior to his interdiction are valid unless they are the
result of illicit exploitation or connivance.
Acts
performed by a person on his deathbed, or in a similar state, are governed by
the Islamic doctrine as provided for by Article 2 of this Law.
The
interdicted is entitled to file in person a lawsuit to remove the
interdiction.
1-
Tutorship: It is tutelage on the person and on property.
A
- Tutelage on the person:
It
is the care of whatever is related to the person of the minor, his supervision,
protection, education, teaching, orientation and proper raising; this includes
consent to his marriage.
B
- Tutelage on property:
It
is the care of all what concerns the property of the minor, its safe keeping,
management and investment.
2-
Tutelage includes: guardianship, curatorship and judicial procuration.
With
due compliance with the provisions relating to the marriage of a female stated
in Article 39 of this Law, shall be subject to tutelage the minor until he
reaches the age of majority, as well as the insane and imbecile of full
age.
1-
The tutor must be of sound mind having attained the full legal age, trustworthy
able to perform the tutelage requirements.
2-
The tutor on the person must be trustworthy on the person of the minor, able to
attend to his affairs and of the same religion as the minor.
1-
Tutelage on the person is for the father, then to the magnates from the
father’s side by order of their inheritance.
2-
In case several persons are entitled and they are all in the same degree, of the
same strength of kinship and they are equal in maturity, tutelage shall be to
the eldest; and if they are different in maturity then the court shall choose
the best among them.
3-
Where there is no one entitled, the court shall appoint a tutor on the person
from among the minor’s relatives, if any is qualified, otherwise from
among others.
Withdrawal
Of Tutelage On The Person
Tutelage
must be withdrawn from the tutor on the person in the following instances:
1-
If he satisfies no more some of the tutelage conditions provided for in this
Law.
2-
If he perpetrates with the person under his tutelage, or with others, the crime
of rape or ravishment or has led him to prostitution or any similar criminal
offense.
3-
If the tutor has been condemned though a final judgment in an intentional
misdemeanor or felony perpetrated by him, or by others, against the person under
his tutelage, or a lesser offense.
4-
If the tutor is condemned to detention for a period in excess of one year.
1-
Tutelage may be withdrawn from the tutor on the person, totally or partially
permanently or provisionally, in the following instances:
a- In case the tutor has been sentenced to a penalty restricting his freedom for
a year or less.
b- Should the person under tutelage become exposed to severe danger to his
safety, health, honor, morality or education due to mistreatment by the tutor or
bad example, because of the tutor’s bad reputation, addiction to alcohol
or narcotics, or absence of care.
It
is not necessary, in this case that the tutor be sentenced to a penalty because
of what is mentioned above.
2-
The court may, instead of withdrawing tutelage, in the above instances, entrust
the minor to a specialized social institution together with the continuity of
the tutor’s tutelage.
In
the cases mentioned in Articles 182 and 183 of this Law, the court may on its
own motion, or upon request of the investigation Authority, entrust the minor
provisionally to a trustee or to one of the specialized social associations
until the tutelage matter is settled.
In
case the tutelage is withdrawn as concerns some of those under his tutorship, it
should be withdrawn from the others as well.
Should
the court decide to withdraw tutelage from the tutor on the person of his ward,
to limit it or stop it, tutelage shall pass to the one following in rank if he
is qualified.
In
case he refuses or is not qualified, the court may entrust tutelage to whomever
it deems qualified, even if he is not related to the minor, or entrust it to one
of the specialized social associations.
In
cases other than those where tutelage must be withdrawn, the court may
reinstate, in whole or in part, tutelage to the tutor on the person of the minor
upon his request and provided six months have elapsed since the disappearance of
the cause of withdrawal.
Tutelage
on property is for the father alone then to the guardian named by him, if any,
then to the grandfather from among the agnates, then to the guardian named by
him, if any, then to the judge. None of these may renounce to his tutorship
without authorization of the court.
The
Property donated as a gift to the minor shall not be included in the tutelage
should the donator so provide.
The
minor’s property and its accessories may not be leased or donated
otherwise such acts shall be void and shall entail liability and guaranty.
The
tutor may not dispose of a real estate owned by the minor in such a way as to
transfer title thereto or establish a real right thereon without the
authorization of the court and for reasons of necessity or evident interest as
estimated by it.
The
tutor may not borrow money to the benefit of the minor unless he is so
authorized by the court and without prejudice to the provisions of the Islamic
Shari’a.
The
tutor may not, without the court’s authorization, lease an immovable
property owned by the minor for a period extending beyond one year after
attaining the age of majority.
The
tutor may not continue a trade that devolved to the minor without the
authorization of the court and within the limits thereof.
The
tutor may not, without the authorization of the court, accept a donation or a
will for the minor if they are charged with obligations.
1-
The tutor shall make a list of the minor’s property owned by, or devolving
to him, and shall deposit this list with the Clerks’ Office of the court
of his domicile within two months from the beginning of the tutelage or from
acquiring title by the minor of the property.
2-
The court may consider the non submission of the list or the delay in submitting
it as exposing the minor’s property to danger.
The
tutor, by authorization of the court, may spend on himself from the
minor’s funds, if the latter has a duty to provide alimony for the former.
He may also spend from these funds on those supported by the minor.
Withdrawal
Of Tutelage On Property
Should
the property of the minor be exposed to danger because of the tutor’s
misdealing or for any other cause, the court has to withdraw or limit the
tutelage.
The
court shall order the cessation of tutelage should the tutor be considered
absent or incarcerated by virtue of a judgment sentencing him to a penalty
restricting his freedom for a period of one year or less.
The
judgment withdrawing tutelage on the person of the minor shall result in its
forfeiture or cessation as concerns his property.
Where
tutelage is withdrawn, limited or stopped, it shall not be reinstated except by
judgment of the court after ascertaining that the reasons therefore have ceased
to exist.
The
request for reinstatement of tutelage, that had previously been rejected, shall
not be accepted unless after the expiry of one year from the date of the final
judgment of rejection.
Dealings
Of The Father And Grandfather
Tutelage
of the father on his minor son’s property shall be for the purpose of
safekeeping, administration and investment.
Tutelage
of the father includes his minor grandsons in case their father is
interdicted.
Dealings
of the father are supposed to be valid, namely in the following instances:
1-
Contracting in the name of his son and disposing of his property.
2-
Trading for the account of his son but he shall not persevere in this trade
except in case of evident benefit.
3-
Acceptance of the licit donations for his son’s benefit if it is devoid of
any prejudicial obligations.
4-
Spending from his son’s funds on those his son is obligated to
support.
Dealings
of the father are contingent upon the authorization of the court in the
following instances:
1-
In case he purchases the property of his son for himself, his wife or any of his
other children.
2-
If he sells to his son his property, the property of his wife or of his other
sons.
3-
If he sells his son’s property to invest the proceeds for his own
account.
1-
The father’s dealings are void if it is established that he miscarried
them or if they are devoid of any interest to the minor.
2-
The father is considered liable, in his funds, in case of gross mistake that
caused prejudice to his son.
Tutelage
of the father shall be withdrawn from him if it is established to the judge that
the minor’s property have been exposed to danger as a result of his
father’s dealings.
The
provisions of this section, applicable on the father, shall apply to the
grandfather.
Tutelage
ends when the minor attains the legal age of majority unless the court decides
to continue tutorship on him.
In
case the tutelage on the person ends, it shall not be reinstated unless there
exists one of the causes of interdiction.
Upon
termination of tutelage, the tutor, or his heirs, has to return the property of
the minor to him through the competent court.
1-
The father may appoint a guardian of his choice on his minor son, on the fetus
in gestation or on the minor children of his interdicted son. This is also
possible for the donor, in the case provided for in Article 189. The
guardianship shall be submitted to the Court for confirmation.
2-
The father or the donor may, at any time, relinquish his choice.
3-
The choice as well as the relinquishment must be established by a formal or
informal paper.
4-
Should the minor or the fetus on gestation have no guardian or a grandfather
from among the agnates, the court shall appoint a guardian.
5-
The guardian shall not dispose of the property of the fetus in gestation until
its birth alive at which time he will deliver the property to his legal
tutor.
Whenever
the minor’s interest so require, the judge shall appoint an ad hoc or a
provisional guardian.
The
guardian, whether chosen or appointed by the judge, must be equitable, capable,
trustworthy, enjoying full capacity, of the same religion as the person under
his custody and able to discharge the duties of guardianship. The following
persons, namely, may not be appointed guardians:
1-
The person whom the father decided, prior to his death, to deprive from
nomination as long as this deprivation is based on strong reasons which the
court, after investigation, deems that it justifies this decision. Privation
shall be established by a formal or informal paper.
2-
The person who, himself, one of his ascendants, descendants or spouse, is in
judicial litigation with the minor; or the person who is in a state of animosity
with the minor or his family should this be detrimental to the interest of the
minor.
3-
The person sentenced to a penalty limiting his freedom for one of the crimes
against morality, honor or honesty. Nevertheless, the lapse of a period of five
years may lead, in case of prejudice, to disregard this condition.
4-
The person who has no legitimate means of living.
5-
The person whose tutelage on another minor has been withdrawn or his
guardianship revoked.
The
guardian shall be bound to observe the conditions and the duties entrusted to
him in the guardianship deed, unless they are in violation of the law.
The
guardian may be a male or female, physical or juristic person, one or several,
independent or in conjunction with a supervisor.
1-
In case the guardians are several, none of them may unilaterally take any action
unless the testator has defined to each his competence. So, if guardianship is
for a number of guardians jointly, none of them may dispose without the approval
of the others. Nevertheless, any of them may take the necessary or urgent
measures or those exclusively to the interest of the minor, dispose of whatever
is exposed to perishing if action is delayed, or dispose of undisputed items
such as restitution of deposits that unquestionably belong to the minor.
2-
In case of difference between the guardians, the matter shall be submitted to
the court.
Guardianship
is binding when expressly or impliedly accepted and the guardian may not abandon
it if accepted expressly or impliedly except through the competent court.
Should
the father appoint a supervisor to control the acts of the guardian, the
supervisor must act accordingly in the minor’s interest and he shall be
accountable to the court.
The
conditions required from the supervisor are the same as those required from the
guardian.
1-
The provisions applicable on the supervisor as to his appointment, removal,
accepting his resignation, remuneration and liability for default are the same
as those governing the guardian.
2-
The court shall decide the termination of supervision whenever the reasons
thereto ceased to exist.
The
guardian has to administer, to upkeep and to invest the minor’s property
and shall, to this end, deploy the necessary care.
The
acts of the guardian shall be under the control of the court; he is under
obligation to submit to it periodical accounts for his acts concerning the
administration of the property of the minor and of those who are in his
condition.
The
guardian may not perform the following acts without the authorization of the
court:
1-
Disposal of the minor’s property by means of selling, buying, bartering,
partnership, pledge or any other act of disposition transferring title or
establishing a real right.
2-
Disposal of the bonds and shares or part thereof, as well as valuable movables
or those which are not perishable unless they are of trifle value.
3-
Transfer of the minor’s debts or accept the transfer on him if he is
indebted.
4-
Investing the minor’s property for his account.
5-
Borrowing money in favor of the minor.
6-
Renting the minor’s real estate.
7-
Acceptance or rejection of conditional grants.
8-
Spending from the minor’s funds on those whose alimony is due on the minor
unless such alimony is established by an enforceable judgment.
9-
Payment of the matured obligations on the estate or on the minor.
10-
Acknowledging a right against the minor.
11
- Compromise and arbitration.
12-
Filing a lawsuit if the delay in filing it is not prejudicial to the minor or
results in the forfeiture of one of his rights.
13-
Withdrawal of a suit and waiver of legal means of appeal.
14-
Selling or leasing the minor’s property for himself, his spouse or one of
their ascendants or descendants or to one whom the guardian is his
representative.
15-
The amount spent for the minor’s marriage such as dowry or the like
according to the regulations in force.
16-
Education of the minor if he is in need to alimony.
17-
Expenditures required by the minor to start a specific profession.
It
is forbidden to the Body in charge of the minor’s affairs or any competent
official therein to purchase or lease, for himself, his spouse or one of his
ascendants or descendants, any of the properties owned by the minor; as well as
to sell to the minor any property owned by the said Body or its representative,
his spouse or any of his ascendants or descendants.
Guardianship
shall be without remuneration unless, upon the guardian’s request, the
court decides to fix him a salary or compensation in consideration of a specific
work to which the guardian asked to be paid a customarily accepted
remuneration.
Termination
Of Guardianship
The
duties of the guardian shall terminate in the following instances:
1-
His death, total or partial incapacity.
2-
Upon evidence that he is missing or absent.
3-
Acceptance of his request to abandon his mission or if he has been discharged
therefrom.
4-
Impossibility to discharge the guardianship’s duties.
5-
Considering the minor of full capacity or upon his attaining the age of
majority.
6-
Removal of interdiction from the interdicted.
7-
Recovering capacity by the minor’s father.
8-
Death of the minor or the interdicted.
9-
Termination of the duty for which the guardian was appointed to discharge or
expiry of the period of his appointment.
Where
the minor reaches the age of majority insane or not apt to be entrusted his
property, the guardian has the obligation to inform the court to consider
extending guardianship after his becoming of full age.
Discharge
of the guardian shall be decided by the court in case:
1-
any cause of disqualification for guardianship arises even if this cause existed
when he was appointed; or
2-
of mismanagement or negligence or if his maintenance as a guardian constitutes a
danger to the interests of the minor.
1-
Upon termination of his task, the guardian has to deliver the minor’s
properties and all related accounts and documents to the concerned person, under
the supervision of the court, within a period not exceeding thirty days
therefrom. Moreover, he has to deposit with the Clerks’ Office at the
competent court, within the said period, a copy of the accounts and the report
evidencing the delivery receipt of the properties. In this respect, the court
shall observe, when necessary, the provisions concerning criminal liability
2-
Shall be void, any undertaking, clearance or discharge obtained by the guardian
from the minor who has reached the age of majority within one year from the date
of ratification of the accounts by the court.
Should
the guardian pass away or be interdicted or declared absent, his heirs, his
legal substitute or the person taking possession of the property, as the case
may be, must forthwith inform the court thereof in order to take the necessary
measures to protect the minor’s rights and hand over the minor’s
property and submit the relative accounts.
The
Absent And The Missing
1-
The absent is the person whose domicile or residence is unknown.
2-
The missing is the person of whom it is not known whether he is alive or
dead.
In
case the absent or the missing has no proxy, a judicial proxy shall be appointed
to administer his property.
An
inventory shall be made of the property of the absent or the missing person upon
appointing the judicial proxy and the property shall be administered in
accordance with the administration of the minor’s property.
The
status of the missing ends:
1-
If the life or death of the missing person is established.
2-
If a judgment is rendered declaring the death of the missing person.
1-
Under all circumstances, the judge must search, by all means, for the missing
person in order to ascertain whether he is alive or dead before adjudicating his
death.
2-
The judge shall declare the death of the missing person if there is evidence of
his death.
3-
The judge shall adjudicate the death of the missing person, one year after he is
declared missing upon request of the concerned persons, in cases were perishing
is prevalent, or four years in ordinary circumstances.
4-
The properties of the missing person who has been declared dead shall not be
allocated unless after the lapse of fifteen years from the date he is declared
missing.
The
day on which the judgment, declaring the missing person dead, is rendered shall
be considered the date of his death.
Should
the missing person be declared dead then appears alive:
1-
His wife returns to him in the following instances:
a- If her second marriage is not consummated;
b- In case her second husband knows that her first husband is alive.
c- If the second husband married her during her waiting period.
2-
He can claim his estate from his heirs except the portion that perished.
A
testament is an act of disposition of the succession after death of the
testator.
A
testament can be absolute, at term after death, subject to a valid condition
precedent or subsequent.
Should
the will be subject to a condition contrary to the Shari’a aims or to the
provisions of this Law, the condition is void but the will is valid.
The
will is
enforceable within
the
limit
of one-third of the
testator’s estate, after paying the rights thereon and is valid beyond
this third, within the limits of the share of the major heir who accepted
it.
Any
act of disposition taken in articulo mortis as a gift or by favoritism shall be
governed by the provisions applicable to wills regardless of the
characterization given to it.
Basic
Elements And Conditions Of A Will
The
basic elements of a will are: The wording, the testator, the legatee and the
bequeathed property.
A
will is formed by words or in writing and if the testator is unable to so
express himself then by a recognizable sign.
Where
a will is denied, the lawsuit concerning a will or revocation thereof shall not
be heard except through the means of proof admitted by law.
1-
A will is valid if made by a person having the capacity to donate, even if it is
done in articulo mortis, with due compliance with the provisions of Articles 174
and 176 of this Law.
2-
The will of an interdicted for prodigality or carelessness is valid if made for
good deeds with authorization of the court.
3-
The testator may amend or revoke a will totally or partially.
4-
Disposal of the bequeathed property by the testator is considered a revocation
of the will.
The
will is valid if made to a person qualified to own the object of the legacy even
if he is of different religion.
The
provisions of Article
(250)
were replaced by virtue of Article (1) of Federal Decree-Law No. 52 dated
02/10/2023 to read as follows:
Taking
into account the provisions of Article (243) of this Law, a will may be only
made to an heir in one of the following two cases:
1-
If approved by all other major heirs, in which case it is executable on the
share of the one who consented.
2-
If required by a preponderant interest decided by the court, in which case the
will shall be executable even without the consent of the other heirs.
Conditions
Of Validity Of A Will
1-
A will is valid if made to a living specific person or to a fetus.
2-
A will is valid if made to a limited or unlimited class of people.
3-
A will is valid if made for charity purposes admitted by law.
1-
A will made to a specific person must be accepted by the beneficiary, after the
death of the testator or during his life provided this acceptance continues
after his death.
2-
Should the beneficiary be a fetus, a minor or an interdicted, acceptance of the
will has to be made by the one who has the curatorship on his property, as he
may reject it after securing the judge’s authorization.
3-
A will to an unspecified person does not need acceptance or rejection by any
one.
4-
Acceptance on behalf of Bodies, institutions and foundations shall be given by
their legal representatives who may reject the will after securing the approval
of the judge.
1-
Acceptance of the will has not to be given immediately after the death of the
testator.
2-
Silence of the beneficiary for a period of thirty days subsequent to his
knowledge of the will shall be considered as an approval thereof.
So,
if the testament is charged with an imposition, the above period shall be
extended to fifty days unless there is an acceptable reason for its
waiver.
The
testator has the complete capacity to revoke the will totally or
partially.
Should
the beneficiary die prior to the death of the testator without
accepting
or
rejecting
the
will, it shall devolve to
his heirs unless it is charged with impositions.
1-
The specified beneficiary shall own the object of the legacy as of the date of
death of the testator provided he accepts the will.
2-
The heir of the beneficiary, who died prior to partition, shall substitute
him.
3-
In case there is more than one beneficiary, the object of the legacy shall be
equally apportioned between them, unless otherwise provided by the
testator.
4-
The living of the twins shall take the entire legacy should the other be born
dead.
1-
A will bequeathed to a class of people, undeterminable in future, shall include
those among them who exist upon the death of the testator and those who shall
exist in future.
2-
The number of the unspecified class shall be limited by the death of their
fathers or there is no hope left for the living among them to have
off-springs.
3-
In case it is hopeless for any of the beneficiaries to exist, the legacy shall
return to the succession.
The
existing persons of the unspecified class shall benefit of the legacy and their
shares therein shall change on each birth or death.
The
proceeds of the legacy shall be divided among the existing of the undetermined
who cannot be restrictively enumerated.
The
object of the legacy shall be sold to the undetermined if it is feared that it
be lost or devaluated and the sale proceeds shall be used to purchase what can
be of benefit to the beneficiaries.
1-
The subject matter of the will, for legally admitted charity purposes, shall be
spent to the benefit thereof.
2-
The proceeds of the legated property to expected institutions shall be paid to
the most similar one until it legally comes into existence.
The
legacy must be the property of the testator and the object of the will be
legitimate.
1-
The legacy may be general or specific.
2-
The general legacy shall include all the assets of the testator, present and
future.
The
general will shall be executed up to one- third of the succession.
1-
The specified legacy may be a real estate or a movable, fungible or non
fungible, naked property, interest, usufruct in land or chattels for a definite
or unspecified period.
2-
Whoever legates a specified thing to a person then legates it to another, it
shall be divided between them unless there is evidence that meant to revoke the
will made to the first.
The
Legacy Of Usufruct And Loaning
1-
Where the value of the specified legacy, whose usufruct or use of it has been
legated, is less than one-third of the succession, the land shall be delivered
to the beneficiary to benefit from it according to the will.
2-
If the value of the specified property which usufruct or use has been bequeathed
and if the consideration for the usufruct for the specified period is more than
one-third the succession, the heirs shall have the choice either to ratify the
will or to give the beneficiary the equivalent of one-third the
succession.
3-
If the legacy is for usufruct for the whole life of the beneficiary, the will
shall be assessed as per the value of the corpus of property.
4-
A will is valid if made as a loan of a fixed sum granted to the beneficiary and
shall not be enforceable for the portion of this amount in excess of one-third
of the loan except with the consent of the heirs.
The
beneficiary of a will granted the usufruct of a specified property shall be
entitled to use it or exploit it even contrary to the purpose specified in the
will provided it does not adversely affect the corpus of the property.
Legacy
Equal To The Share Of An Heir
If
the legacy is equal to the share of a specified heir from among the
testator’s heirs, the beneficiary shall be entitled to the same share of
this heir plus his share in the estate.
If
the legacy is the share of an undetermined heir among the testator’s heirs
or equal to his, the beneficiary shall be entitled to the share of one of the
heirs over and above his share in the estate, in case the heirs have equal
shares, and the share of the heir who has the smallest share over and above his
share in the estate, if they have not equal shares.
The
beneficiary of a share equal to that of an heir, whether male or female, shall
be entitled to his share up to one-third and the portion in excess of this
one-third shall be taken from the share of the major heir who consented to the
will.
A
will is void in the following instances:
1-
Express or implied revocation of the will by the testator.
2-
Death of the beneficiary during the life of the testator.
3-
Rejection of the will by the beneficiary during the life of the testator or
after his death.
4-
Murder of the testator by the beneficiary whether the latter is the author,
accomplice or accessory of the crime provided that, upon perpetrating the crime,
he was of sound mind having reached the capacity required for criminal liability
regardless of whether the killing took place prior or subsequent to the
will.
5-
Perishing of the specified subject matter of the bequest or its entitlement by a
third person.
6-
Apostasy from Islam of the testator or the beneficiary unless he returns to
it.
Should
the beneficiary become an heir to the testator, his entitlement to the will
shall be conditional upon the approval of the other heirs.
1-
Whoever dies or is considered dead by decision of the court and has grandsons
from his son or his daughter and this latter died before or with the testator,
the grandsons shall be entitled to a mandatory will for one third of the estate
within the following limits and conditions:
a- The mandatory will for these grandsons shall be equal to their share that
their father would have inherited from his father had he survived him, provided
it does not exceed one-third of the estate.
b- The above-mentioned grandsons shall not be entitled to a mandatory will if
they inherit their ascendant, grandfather or grandmother, or if this ascendant
did not bequeath to them or grant them in his life time, without consideration,
an amount equal to their entitlement under the mandatory will. In case he
bequeathed to them below this amount it must be completed and if more than the
said amount, the excess shall be considered a voluntary will. Should he bequeath
to some of them only, the others shall be entitled to the mandatory will, each
according to his share.
c- The right to the mandatory will shall be to the children of the son or the
daughter or their descendants, without limitation and regardless of their
number, the male’s share shall be twice the share of a female. The
ascendant shall disinherit his own descendants only and the descendant shall
only be entitled to the share of his ascendant.
2-
The mandatory will is prevalent to the voluntary wills as to its execution on
the one-third of the estate.
3-
The murderer and the defector shall be deprived from the benefit of the
mandatory will, in accordance with the provisions of this Law on
Testaments.
Should
the one-third be short of satisfying the wills of equal rank and the major heirs
did not approve the portion in excess thereof, the one-third shall be
apportioned in equal shares between the beneficiaries. In case the subject
matter of a will is a specific thing it will be set-off against its price so
that the deserving beneficiary shall take his share from the specified object
and the others shall take their share from the balance of the whole third.
Succession
And Inheritance
Succession
is what the decedent leaves, assets and financial rights.
Rights
are attached to succession; some have precedence over the others according to
the following order:
2-
Payment of the decedent’s debts due to God or to human beings.
4-
Distribution of the balance of the succession on the heirs.
Ascertainment
of death and succession:
1-
The person who claims ascertainment of death and succession has to submit an
application in this respect to the competent court which shall include
statements concerning the date of death, the last domicile of the decedent,
names of the heirs and their domicile, the legatees and their domicile and the
entire movable and immovable properties of the estate.
2-
The Clerks’ Office shall give notice to the heirs and the legatees to
appear before the court at the date to be fixed for this purpose. The judge
shall examine the testimony of those he trusts and may add to this the
administrative investigations, as he sees fit.
3-
The ascertainment of death and succession stands as a conclusive evidence unless
otherwise adjudicated or if the court decides to stay its conclusiveness. The
court shall issue a certificate of inheritance limiting the heirs and indicating
the shares of each in the succession.
The
procedures for liquidation of the estate are the following:
1-
In case the decedent did not appoint an administrator for his estate, any of the
concerned persons may ask the judge to appoint an administrator unanimously
chosen by the heirs from among them or from others and in case they fail to
reach such an agreement, the judge shall chose one after hearing the
heirs’ statements.
2-
Special provisions shall be complied with if there is among the heirs an unborn
fetus, a fully incapacitated or a heir lacking capacity or an absentee.
Should
the decedent appoint an administrator for his estate, the judge must, upon
request of one of the concerned persons, ratify this appointment but the
administrator may ask to be excused from such nomination.
Upon
request of one of the concerned persons or of the public prosecution or even
without any request, the judge may dismiss the administrator and appoint another
whenever there is a justification for this decision.
1-
The court shall enter in a special register the orders of appointment or of
ratification of administrators, in case they are appointed by the decedent, or
their dismissal or withdrawal.
2-
This entry shall produce its effect on those who deal with the heirs as concerns
the real estates of the succession.
1-
The administrator of the estate shall, after his appointment, take delivery of
the estate’s assets that he shall undertake to liquidate under the
supervision of the judge. He may claim a remuneration to be fixed by the
judge.
2-
The estate shall bear the liquidation expenses which shall have the priority
given to judicial expenses.
The
judge shall, when necessary, take whatever is necessary to preserve the estate
and order the deposit of cash money and financial securities and valuables at
the Treasury of the court in whose jurisdiction the estate’s property,
totally or the largest part of it, is located until liquidation is
completed.
The
administrator of the estate shall spend from the estate’s funds:
2-
A sufficient and reasonable alimony to the needy heir until liquidation is
completed and after obtaining an order of payment from the judge, provided the
alimony obtained by each heir shall be deducted from his share in the
estate.
3-
The judge shall settle all litigations arising in this respect.
1-
As from the appointment of the estate’s administrator, the creditors may
neither take any measure against the estate nor continue any measure already
initiated except against the administrator of he estate.
2-
Whenever so requested by the concerned persons, all measures taken against the
decedent shall be stayed until the settlement of all the estate’s
debts.
Prior
to receiving an attestation showing his share in the net assets of the
succession, the heir may not dispose of the estate, as he may not take any of
the debts due by the estate or compensate a debt on him with one on the
estate.
1-
The administrator of the estate has to take all measures to preserve its assets
and perform the necessary administration acts and represent the estate in the
lawsuits and recover the debts in its favor.
2-
The administrator shall assume the same liability as that of the remunerated
proxy, even if he is not salaried, and the court may ask him to account for his
administration at fixed intervals.
1-
The administrator of the estate shall invite its creditors and debtors to submit
a statement of their rights and of the debts owed by them, within a period of
two months as of the date of publishing this notice.
2-
The notice must be affixed on the bulletin board, of the court of the last
domicile of the decedent as well as the court within whose jurisdiction all or
most of the estate’s assets are located, and be published in a daily
paper.
The
administrator of the estate has to deposit with the court which ordered his
appointment, within three months from the date of his appointment, an inventory
statement of all the rights and dues of the estate as well as an assessment of
the value thereof and notify the concerned persons of such deposit through
registered mail with acknowledgment of receipt.
The
administrator may ask the court to extend this period should he have a
justification for such request.
For
the purpose of assessing and inventorying the estate’s assets, the
administrator of the estate may seek the assistance of an expert and he must
record all what the decedent’s documents may reveal. The heirs have to
inform him of all the debts and rights of the estate that came to their
knowledge.
Shall
be sentenced to the penalty provided for in the penal law, for embezzlement,
whoever fraudulently appropriated any of the estate’s property even if he
is an heir.
Any
dispute over the accuracy of the inventory shall be submitted, through a
lawsuit, to the competent court within thirty days as of the date of depositing
the inventory statement.
Settlement
Of The Estate’s Debts
1-
Subsequent to the expiry of the delay fixed for contesting the inventory
statement, the administrator shall, after securing the permission of the court,
pay the undisputed debts.
2-
The disputed debts shall be settled after deciding on their accuracy by a
decisive judgment.
In
case the estate is declared bankrupt or likely to be declared so, the
administrator shall stop settling any debt, even if undisputed, until all the
litigations concerning the debts of the estate are finally settled.
1-
The administrator of the estate shall pay its debts from the rights collected,
the cash money included, the price of the chattels comprised therein and, in
case they fall short, then from the price of the real estates.
2-
Chattels of the estate and its immovable properties shall be sold by auction and
in accordance with the procedures and within the delays provided for forced
sales in the Law of Civil Transactions, unless the heirs agree otherwise. In
case the estate is bankrupted, the approval of all creditors should be secured
on the manner agreed upon by the heirs who have, in any case, the right to
participate in the auction.
Debts
unsecured by real mortgage shall mature upon the death of the decedent and the
judge, upon request of all heirs, shall decide that the debts secured by real
mortgage have fallen due and shall determine the amount due to the
creditor.
After
allocating the undue debts that are secured by real mortgage, each heir may pay
his share of the debt prior to maturity.
Debtors
who have not been paid their dues because their rights do not figure in the
inventory statement, and who have no mortgages on the estate’s assets, may
not have a claim against those who have acquired in good faith a real right on
these assets but they may have a claim against the heirs to the extent of what
they received from the estate.
Subsequent
to the settlement of its debts, the administrator shall execute the
decedent’s wills and other charges.
Delivery
And Partition Of The Estate’s Assets
Subsequent
to the fulfillment of the estate’s obligations, the balance of its assets
shall devolve to the heirs, each according to his legal share.
1-
The administrator of the estate shall deliver to the heirs the property that
devolved to them from the estate.
2-
Upon the expiry of the period fixed for the disputes concerning the inventory of
the estate, the heirs may claim delivery of all or part of the objects and the
cash money that are not required for liquidation against submitting a guarantee
or without it.
Every
heir is entitled to ask the administrator of the estate to deliver to him his
share in the estate parceled out unless the said heir is bound to remain in
joint ownership either by agreement or according to a law provision.
1-
The estate that is not over covered with debts may be partitioned prior to the
payment of debts due on it provided a portion of this estate is allocated for
the payment of the debts including these secured by a real mortgage.
2-
In case the application for partition is accepted, the administrator of the
estate shall make the partition provided it shall not become final unless
accepted by all heirs.
3
- Should the heirs do not unanimously agree to the partition, the administrator
of the estate shall request the court to proceed with it according to the law
provisions and the expenses of the partition lawsuit shall be deducted from the
shares of the heirs.
The
partition of the estate shall be governed by the rules applicable to partition
in general and by the provisions of the following Articles.
Should
there be among the assets of the estate a property that may be exploited for
agriculture, industry or commerce and considered as an independent entity, and
if the heirs do not agree to continue the exploitation and the property is not
encumbered with any third-party rights, the property as a whole shall be
allocated to the heir who claims it if he is the most apt to take care of it and
provided its value is determined and deducted from his share in the estate. In
case all the heirs have equal aptitudes, the property shall be allocated to the
heir among them who gives the highest price provided it is not below the price
paid for a similar property.
Unless
otherwise agreed, should one of the heirs be allocated, upon partition, a debt
on the estate, the other heirs shall not guarantee the debt in case he is
declared bankrupt after the partition.
The
will allocating the assets of the estate between the heirs of the testator so
that the share of each heir, or some of them, is determined, shall be
valid.
In
this case it shall be treated as a will to an heir.
Partition
to take effect after death may be revoked but it becomes binding upon the death
of the testator.
Should
partition not include all the decedent’s assets upon his death, the
property not included in the partition shall devolve as joint property to the
heirs in accordance with the rules on succession.
Should
one or more of the prospective heirs who have participated in the partition die
before the decedent, the parcelled out share allotted to the deceased heir shall
devolve in joint property to the other heirs, in accordance with the rules
governing successions, without prejudice to the provisions applicable to the
mandatory will.
The
partition to take effect after death shall be subject to the rules governing
partition in general, except the provisions concerning burdensome
contracts.
In
case the partition does not include all the estate’s debts or included it
but the partition was not approved by the creditors, any heir, in case of
disagreement with the creditors, may request the court to do the partition and
settle the debts provided that the partition mentioned in the decedent’s
will and the reasons therefore be taken, as much as possible, into
consideration.
Non-Liquidated
Successions
If
the succession is not liquidated according to the preceding provisions, the
ordinary creditors of the estate may implement their rights or what has been
bequeathed to them on the real properties of the succession that has been
disposed of or has been encumbered with real rights to third parties, if they
lay an attachment on these properties in consideration of their rights prior to
registration of these transactions.
Inheritance
is the imperative devolution of the property and financial rights upon the death
of their owner to those deserving.
The
main elements of inheritance are:
The
causes of inheritance are: marriage and kinship.
Entitlement
to succession is subject to the following conditions: Death of the decedent in
reality or by judgment; the presence of the heir alive upon the real or assumed
death of the decedent; knowledge of the whereabouts of the succession.
Among
the causes of debarment from succession, the deliberate murder of the decedent
whether the murderer is the principal offender, an accomplice or the one who
caused the death. The killing should be without right or excuse and the murderer
must be of sound mind enjoying full capacity.
There
is no inheritance between persons of different religions.
In
case of death of two or more persons who inherit from each other and it is not
known who died first, no one is entitled to the succession of the other.
Inheritance
may be forced, agnatic or both then cognatic.
Forced
Inheritance And Heirs (Fouroud)
1-
Forced inheritance: is a fixed share for an heir in the estate.
2-
The fixed shares are: one-half, one quarter, one-eighth, two- thirds, one third,
one sixth, and one-third of the balance.
3-
The forced heirs are: The two parents, the spouses, paternal grandfather or his
agnate ascendants, the grandmother who is not related to the decedent by an
heir, daughters, the daughters of the son or of his descendants, sisters in the
absolute, and the cognate brother.
Those
who receive one-half of the estate:
1-
The husband provided that the wife has no succeeding descendant.
2-
The daughter provided the decedent has no other child, male or female.
3-
The daughter of the son or of his descendants provided the decedent has no child
or grand child equal or higher in degree with her.
4-
The germane sister, if she has no brother, other sisters, a succeeding
descendant to the decedent, father or paternal grandfather.
5-
The consanguine sister, if she is one and there is no consanguine brother,
germane brother or sister, a succeeding descendant to the decedent, a father or
a paternal grandfather.
Those
who receive one-quarter of the estate:
1-
The husband in case the wife has a succeeding descendant.
2-
The wife, even if several, should the husband have no succeeding
descendant.
Those
who receive one-eighth of the estate:
The
wife, even if several, should the husband have a succeeding descendant.
Those
who receive two-thirds of the estate:
1-
Two or more daughters, if the decedent has no sons.
2-
Two or more daughters of the son, or of his descendants, if the decedent has no
direct son, grandson of the same degree as the son’s daughters or a
grandchild of a higher degree.
3-
The two or more germane sisters in the absence of a germane brother, a
succeeding descendant of the decedent, father or paternal grandfather.
4-
The two or more consanguine sisters, in the absence of a consanguine brother, a
germane brother or sister, a succeeding descendant of the decedent, father or
paternal grandfather.
Those
who receive one-third of the estate:
1-
The mother, if the decedent has no succeeding descendant, or if there is
absolutely none of the brothers and sisters, unless she inherits with one of the
spouses and the father restrictively, then she is entitled to one-third of the
remainder.
2-
Two or more of the mother’s children in the absence of a succeeding
descendant of the decedent, a father, a paternal grandfather. This third shall
be equally divided between them, male and female.
3-
The paternal grandfather, if he concurs with the germane or consanguine brothers
or both, if they are more than two, or a corresponding number of sisters, and in
the absence of forced heirs.
Those
who receive one-sixth of the estate:
1-
The father in concurrence with a succeeding descendant.
2-
The paternal grandfather, in the following instances:
a- If the decedent has a succeeding descendant.
b- In the presence with him of forced heirs and where his share is less than
one-sixth or one third of the remainder or if nothing is left after they have
taken their forced shares.
c- If he has with him a forced heir and more than two brothers or an equal
number of sisters, whether germane or consanguine, and his share of one-sixth is
better to him than the two-thirds of the remainder.
3-
The mother with the succeeding descendant of the decedent or with two or more of
the brothers or sisters, in the absolute.
4-
One or more grandmother and her ascendants provided she is not debarred from
inheritance.
5-
One or more daughter of the son or of his descendents if she inherits with a
single consanguine daughter or with a single son’s daughter who is higher
in degree, provided there is no son or grandson in a higher or in an equal
degree compared to her.
6-
One or more consanguine sister with a single germane sister if the decedent has
no succeeding descendant, or father, paternal grandfather brother or consanguine
brother.
7-
A single uterine brother or sister in the absence of a succeeding descendant of
the decedent, a father or paternal grandfather; with due observance of Article
347 of this Law.
Those
who receive one-third of the remainder:
1-
The mother with one of the spouses and the father, if the decedent has no
succeeding descendant or two or more of the brothers or sisters, in the
absolute.
2-
The paternal grandfather if he is with a forced heir and more than two brothers
or an equal number of germane or consanguine sisters, provided the one-third of
the remainder is better for him than the one-sixth.
1-
Agnates are entitled to an undetermined share in the estate.
2-
Agnates are of three kinds:
Agnates
per se are of four directions, one preferred on the others according to the
following order:
1-
Descendants: including sons and grandsons of the son and of his
descendants.
2-
Fatherhood: including the father and the paternal grandfather and his
ascendants.
3-
Brotherhood: including germane or consanguine brothers and their
descendants.
4-
Paternal Uncles: including the paternal uncles of the deceased, whether
germane or consanguine, paternal uncles of his father, paternal uncles of the
consanguine paternal uncles and his ascendants, whether germane or consanguine,
or the germane or consanguine sons of the paternal uncles and their
descendants.
The
agnate per se is entitled to the estate if there are no forced heirs and is
entitled to the remainder, if any, and shall receive nothing if the shares of
the forced heirs exhaust the whole succession.
1-
Shall have precedence among the agnates the preferred class according to the
order stated in Article 330 of this Law, then the nearer degree to the deceased,
in case of equality in class, then the closest relative in case of equal
degrees.
2-
The agnates shall participate in their entitlement to their share in the
succession in case they are of the same class and of equal degrees and strength
of kinship.
Should
the paternal grandfather participate in the succession with the germane or
consanguine brothers or both, male or female or mixed, and whether or not there
are with them forced heirs, the grandfather shall inherit as an agnatic heir,
being considered as another brother to the deceased, unless the one-sixth or the
one-third of the remainder is better for him; with due regard to the provision
of Article 346 of this Law.
a- One or more daughter with one or more son.
b- One or more daughter of the son or of his descendants, however remote, with
one or more grandson, whether he be of the same or of a lower degree than her,
if she needs him, and he will debar her if he is of a higher degree.
c- One or more germane sister with one or more germane brother.
d- One or more consanguine sister with one or more consanguine brother.
2-
In these instances the male shall inherit double the share of a female
heir.
Agnates
with others: One or more germane or consanguine sister with one or more
daughter or the son’s daughter. In this case she shall be considered as
the brother in the entitlement to the remainder and in excluding the other
agnates.
Heirs
succeeding as both forced and agnates are:
1-
The father or the paternal grandfather with the daughter or the son’s
daughter and his descendants.
2-
The husband, if he is the son of the paternal uncle of the deceased, shall
receive his share as a forced heir and his entitlement as an agnate.
3-
One or more uterine brother, if he is the son of the paternal uncle of the
deceased, he shall receive his share as a forced heir and his entitlement as an
agnate.
1-
Exclusion: is the debarment of an heir of all or part of the succession because
of the presence of another more entitled heir.
2-
Exclusion is of two kinds: Debarring exclusion and decreasing exclusion.
3-
The excluded from inheritance may exclude an heir other than himself.
4-
The prohibited from inheritance does not debar an heir other than himself.
1-
The paternal grandfather is excluded by the father and by every agnatic
grandfather from whom he originated.
2-
The nearest grandmother excludes the remote unless the parenthood is from the
father’s side then she does not exclude the more remote from the
mother’s side. The mother excludes the agnatic grandmother, in the
absolute, and the father excludes the paternal grandmother. The agnatic
grandfather excludes the grandmother if she is his ascendant.
The
uterine brothers are excluded by the father, the agnatic grandfather and his
ascendants, the son, the grandson and his descendants.
The
son, grandson and his descendants exclude the son’s daughter who is lower
in degree than him and she is also excluded by two daughters or two
granddaughters of a higher degree unless she is with one with whom she becomes
agnate.
Each
of the father, son, grandson and his descendants exclude the brothers and the
germane sisters.
Each
of the father, son, grandson and his descendants exclude the agnatic sister and
she is also excluded by the germane brother and sister, if she is an agnate with
others in accordance with the provisions of Article 335 of this Law. She is also
excluded by two germane sisters in the absence of a consanguine brother. The
consanguine brothers are excluded by each of the father, son, grandson and his
descendants, the germane brother and sister if the latter is an agnate with
others.
Reallocation
By Increase Or Decrease Of Shares
Reallocation
by increase of shares (Rad’): is the increase in the share of the forced
heirs in proportion of their original shares, in case the estate is larger than
the total shares.
If
the shares of the forced heirs do not exhaust all of the estate and there are no
agnatic relatives, the excess shall revert to the forced heirs, other than the
spouses, in proportion of their shares. The balance of the estate shall revert
to one of the spouses in case there are no agnate relatives or forced heirs or
relatives other than the forced heirs and the agnates.
1-
Reallocation by decrease of shares: is the decrease in the shares of the forced
heirs, in proportion to their shares, in case the shares exceed the common
denominator of the estate.
2-
The new common denominator shall become the base on which the estate shall be
divided.
The
presence of the grandfather makes the germane or consanguine sisters agnates and
they do not inherit with him as forced heirs except in Akdarieh which is the
case of the spouse with a mother, grandfather, germane or consanguine
sister.
The
father receives one-half, the mother one-third, the grandfather one sixth; the
sister has a forced share of one-half which shall be added to the one-sixth
which is the share of the grandfather and the total to be divided between the
two, the male receiving the share of two females.
The
germane brother inherits as agnates except in Al Mushtaraka which is the case of
a spouse, mother or grandmother, a number of uterine brothers and sisters, a
germane brother or more.
The
spouse receives one-half, the mother or grandmother one sixth and the one-third
shall be divided between the uterine and germane brothers and sisters, the male
takes the share of two females.
Al
Malikiya And Quasi-Malikiya
The
grandfather does not exclude the germane or consanguine brother except in Al
Malikiya and quasi-Malikiya:
Al
Malikiya: a husband, mother, grandfather, uterine brothers, consanguine
brother: the husband receives one-half, the mother one=sixth and the rest to the
grandfather being an agnate.
Quasi-Malikiya:
a husband, mother, grandfather uterine brothers, germane brother: the
husband receives one-half, the mother one-sixth and the rest to the grandfather
being an agnate.
The
cognates are of four kinds:
The
daughters’ sons and the granddaughters’ sons and their
descendants.
Maternal
grandfathers and grandmothers and their ascendants.
1-
The uterine brothers’ sons and their descendants.
2-
Children of the sisters, in the absolute, and their descendants.
3-
The sons’ daughters, in the absolute, their sons and descendants.
4-
The daughters of the brothers’ sons, in the absolute, however remote and
their descendants.
1-
Uterine uncles, from the paternal side, of the deceased, his aunts, in the
absolute, and his uncles and aunts from the maternal side, in the
absolute.
2-
The sons of those mentioned in the above clause and their descendants, the
female cousins, germane or consanguineous, of the deceased, their sons’
daughters and their descendants as well as the sons of those mentioned and their
descendants.
3-
The uterine uncles of the deceased’s father, his aunts from the paternal
side, uncles and aunts from the maternal side (relatives of the father); Uncles
and aunts, in the absolute, of the deceased’s mother (relatives of the
mother).
4-
The sons of those mentioned in the above clause and their descendants, the
cousins of the deceased’s father (germane, consanguineous or uterine);
their sons’ daughters and their descendants without limitation.
5-
Paternal uterine uncles of the deceased’s paternal grandfather; paternal
uncles of the deceased’s grandmother (mother of his father); paternal
aunts of the deceased’s parents (both sides) and their maternal uncles and
aunts, in the absolute, (relatives of the father); paternal uncles and aunts of
the grandparents of the deceased’s mother; maternal uncles and aunts of
the deceased’s mother, in the absolute, (relatives of the mother).
6-
The sons of those mentioned in the preceding clause and their descendants; the
deceased’s paternal uncles of the germane or consanguine grandfather and
their sons’ daughters and their descendants; the children of those
mentioned and their descendants.
1-
In the first kind of cognates, those closer in degree to the deceased shall have
precedence and if they are equal in degree, the child of the forced heir shall
have precedence over the child of the cognate. If they are all children of a
forced heir or if none is so, then they shall participate equally in the
estate.
2-
In the second kind of cognates, those closer in degree to the deceased shall
have precedence and if they are equal in degree, the one from whom descends a
forced heir shall have precedence. In case they are all of equal degree without
a forced heir among their descendants, or all of them have forced heirs
descendants, and if all are of paternal descent or of maternal descent, they
shall participate equally and if they are not all of the same parental descent,
two thirds shall be given to those of paternal descent and one third to those of
maternal descent.
3-
In the third kind of cognates, those closer in degree to the deceased shall have
precedence and if they are equal in degree and among them some are entitled
heirs and the others are cognates, the former shall have precedence over the
latter, otherwise the closest relative. So, those who descend from both parents
are preferred to those descending from either one; those who descend from the
father are preferred to those descending from the mother; and if they are all
equal in degree and strength of kinship they shall participate equally in the
estate.
1-
In case all members of the first group of the fourth kind, as stated in Article
349 of this Law, are of paternal descent; i.e. Maternal uncles of the deceased
or his aunts, in the absolute; or are of maternal descent; i.e. uterine uncles
of the deceased or his aunts, in the absolute, the closest kin shall have
precedence. So, the germane shall be preferred to the consanguine or the uterine
and who descends from the father is preferred to the one of maternal descent. If
they are of the same strength of kinship they shall participate equally in the
estate. In case they are of different descents, two-thirds shall be given to
those of paternal kinship and one third for those of maternal kinship. The share
of each group shall be divided in the aforementioned manner.
The
provisions of the preceding paragraph shall apply to the members of the third
and fifth groups.
2-
In the second group, the closest degree among them shall have precedence over
the more remote even if he is from a different line of descent. In case of equal
degrees and same descent, the closest shall be preferred, if they are all
descendants of an agnate or a cognate, and if they are different, the agnate
shall be preferred to the cognate. In case of different sides of kinship,
two-thirds shall be given to those of paternal descent and one third to those of
maternal descent. The share of each group shall be divided between them in the
aforementioned manner.
The
provisions of the preceding paragraph shall apply to the members of the fourth
and sixth groups.
3-
No consideration shall be given in case of multiple kinship of a cognate heir
except where the line of descent is different.
A
male heir shall have the share of two females in the inheritance of cognates
except the maternal brothers who shall receive equal shares with the female
heirs.
The
share of the missing person in the succession of his decedent shall be frozen on
assumption that he is alive, so if he appears alive he shall take it and if he
is declared dead his share shall devolve to his entitled heirs on the date of
the judgment.
The
conceived child shall be entitled to a share in the succession of his decedent
to be reserved for it. This share shall be the shares of two males or two
females, whichever is larger, on the assumption that the conceived are twins.
The rest of the heirs shall receive the smaller of the two shares. The
distribution of the estate shall be adjusted after birth according to the shares
provided for in the law.
Should
the share reserved for the conceived child be less than his entitlement, the
difference shall be taken from the heir in whose share this difference accrued.
Where the share reserved is more than its entitlement, the excess shall go to
the entitled heir.
1-
Alienation is an agreement of the heirs that some of them abandon their share in
the estate, of which they have knowledge, to the other heirs against a specific
consideration.
2-
Should one of the heirs alienate his share to another, the latter is entitled to
this share and shall replace him in the succession.
3-
Where alienation by one of the heirs to the others takes place and if the
consideration has been paid to him from the estate, the shares of the alienator
shall be deducted from the total shares and the shares of the others shall
remain unchanged. In case the consideration is paid from their own funds and the
alienation agreement did not provide for the mode of partitioning of the
alienator’s share, it shall be divided among them on pro rata of the
amount paid by each of them and, if it could not be determined, his share shall
be divided equally between them.
1-
Should the deceased, while alive, acknowledge the existence of a kinship
relation between someone and himself, his acknowledgment does not bind the heirs
unless it fulfills the conditions of its validity.
2-
In case his acknowledgment concerns someone else and the kinship relation was
not established, in accordance with Article 93 of this Law, and he did not
retract his acknowledgment, the beneficiary thereof shall be entitled to the
whole estate of the acknowledging decedent unless the latter has an heir.
3-
If some of the heirs acknowledge to another person the existence of a kinship
relation between the latter and the decedent, the beneficiary of such
acknowledgment shall share exclusively with the acknowledging heir his
entitlement in the estate of the decedent unless he is excluded by him.
The
adulterous child shall inherit from his mother and her relatives; his mother and
her relatives shall inherit him; likewise for the incestuous child.
The
ambiguous bisexual shall be entitled to half of the two shares considering
masculinity and feminineness.
The
vacant estate shall be a mortmain (Wakf) in his name for the poor, the needy and
the students in the Administration of the Public Organization of Wakfs.
Shall
be considered void, every fraud to the provisions governing inheritance by way
of sale, donation, testament or other dispositions.
Each
provision violating or contradicting the provision of this Law shall be
abrogated.
The
present Law shall be published in the Official Gazette and shall come into force
as of the date of its publication.
Promulgated
by Us at the
Presidential Palace at Abu Dhabi
on 17 Shawal 1426
H.
Corresponding to 19th of
November 2005
Khalifah Bin
Zayed Al Nahyan
President of the
United Arab
This Federal Law has been published in the
Official Gazette, issue no. 439, p. 9
