By Staff Reporter
In January 2024, UAE resident Jen (full name withheld on request) gave birth to a healthy baby boy out of wedlock. Although unmarried, she has been living with her Muslim partner since February 2023. As a non-Muslim herself, the young expat mother in her 20s has voiced concerns that the child’s Arab father might potentially seek full custody of their newborn down the line, raising questions about her rights in the situation.
“My partner is financially well-off due to his investments, while I depend on my job. I want to secure my son’s future since his father never committed to our relationship and never mentioned marriage,” said Jen.
She added, “I would like to know if I can gain full custody of my son without having to go through a lengthy legal battle which could tilt towards the father.”
The child is under Jen’s sponsorship and has a Dubai residency visa. “It wasn’t easy, but I was able to obtain a passport and birth certificate for my baby. I had to seek the support of a friend who knew the ropes and helped me complete the process. The birth certificate lists both our names and our religious backgrounds — but no surname,” she said.
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Child’s welfare is priority
Changes in UAE family laws have decriminalised consensual relations outside of marriage and introduced provisions for unmarried parenting. These reforms create a framework that protects the rights and upholds the dignity of every child, regardless of their parents’ marital status.
“While unmarried status presents challenges, UAE courts prioritise the child’s welfare. A well-structured legal approach can protect both mother’s and child’s rights while respecting religious and cultural requirements,” said Hossam Zakaria, CEO & founder of Hossam Zakaria legal consultancy and services.
The custody of a child born outside of wedlock is governed by a combination of federal laws that prioritise the child’s welfare while adhering to Sharia principles.
“The law stipulates that the mother is likely to hold primary custody of the child due to her natural familial connection and custodial responsibilities. Article 146 of the Personal Status Law outlines the hierarchy of custodial rights, prioritising the mother, followed by other female relatives in descending order of eligibility—and then male relatives, if no suitable female caregivers are available. This framework reflects the overarching principle that custody must align with the child’s best interests,” said Nikhat Sardar Khan, head of the corporate, DIFC Litigation, and Arbitration Department at Hilal & Associates Advocates & Legal Consultants.
Nikhat Sardar Khan
Nikhat Sardar Khan
What the law says
“Custody is not merely a legal right but a profound responsibility, ensuring the child’s stability and moral upbringing within a natural environment, primarily under the care of the mother,” said Nikhat Sardar Khan.
The UAE law* stipulates that if a child is born as a result of sexual intercourse outside of wedlock or from an incestuous relationship, the involved parties may avoid criminal prosecution if they marry each other or if one or both parents acknowledge paternity of the child and secure identification documents and passports for the child in accordance with the State’s laws.
While marriage is no longer a mandatory requirement, the law stipulates criminal liability for sexual intercourse resulting in childbirth if these conditions are not met, so fighting over custody is not something a party will opt for.
According to Zakaria, in a custody battle, courts generally consider factors including:
Financial capability
Moral character
Ability to provide care
Religious upbringing
Stability of home environment
Primary custody with mother
The UAE’s personal affairs law now allows non-Muslim mothers to retain custody of their children from Muslim fathers beyond the age of five, subject to court approval. Earlier, they often lost custody once the child reached five. This also grants courts greater discretion to prioritise the child’s best interests.
Exceptions apply to children with critical illnesses or mental and physical conditions. In such cases, custody remains with the mother unless the court decides otherwise.
According to Sarim Naved, Attorney in ADGM and DIFC, the mother has the right to claim the extension of the custody period until their son finishes his education and their daughter gets married. In this case, the mother has to prove that she has been good with the children through their school performance reports and a good medical health history.
The father can claim custody of their son if he feels that the son is becoming too soft in nature by staying with the mother and that the father would want the son to grow up to be more responsible. In both circumstances, the judge will decide the case.
Financial support from father
The father is responsible for providing for the child financially. He is responsible for providing shelter and paying for food, medical care, education, and other necessities.
UAE family lawyer Mahra Belobaida at Hasan AlRayyami Advocates and Legal Consultancy explained the father’s role as the natural guardian. “He must sponsor and care for the child. He is his provider, helper, guardian, and the one responsible for raising him. The mother’s greater and more important role is indispensable, as she provides comfort, security, and protection, offering a nurturing environment that shields the child as a custodian.”
The Emirati lawyer pointed out that partners can also consider joint custody, “as it is the safe way to prevent negative psychological effects on the child, except when there’s an ongoing conflict between the parents, which can create a harmful environment.
“The key idea is that when parents cannot cooperate, sole custody with the more capable parent — typically, the mother — is the best solution for the child’s well-being.”
Mahra Belobaida
Mahra Belobaida
Religious influence on custody
Although UAE custody law tends to favour the mother, Jen worries that her partner’s desire to raise their son as a Muslim could be used to challenge her decisions or pursue full custody. “I’m open to the idea of raising my son as a Muslim; I have no issue with that,” the young mother explained.
According to legal experts, under UAE law, a child born to a Muslim father is legally considered Muslim, regardless of the mother’s religion. However, this legal status does not automatically grant the father full custody rights. The mother’s right to custody remains protected if she:
Respects the child’s Muslim identity
Doesn’t interfere with religious education
Maintains moral conduct
Protection against abduction
Single mothers often worry about the possibility of their child being abducted by partners who may take them away and not return to the UAE.
For such mothers, the UAE offers legal protections and preventive measures to ensure their child’s safety. Here are important steps mothers can take to safeguard their children from abduction:
Register travel restrictions: Mothers can request the addition of their child’s name to the UAE immigration database, which can impose travel restrictions. This prevents the child from being taken abroad without the mother’s consent or a court order.
Maintain possession of passport: Keeping the child’s passport secure is critical. Mothers should maintain possession of their child’s passport at all times to prevent the other parent or any third party from using it to take the child out of the country.
Document all agreements: It is vital to have official documentation of custody arrangements, including any agreements made between parents or court orders. This documentation can help prove the mother’s legal custodial rights if a custody dispute arises.
Consider court-ordered protection measures: If there are serious concerns about potential abduction, mothers can apply for court-ordered measures such as a travel ban or restrictions on the other parent’s access to the child’s passport. This ensures additional legal protection and prevents any attempt to remove the child from the UAE without consent.
Legal experts advise that a mother worried about abduction can record any instances or eyewitness accounts in which the father has acknowledged the child as his and taken responsibility for the child’s care. This can include documented statements, communications, or actions in which the father has expressed his commitment to the child’s well-being. Such evidence can be valuable in future disputes regarding custody or parental responsibilities.
Legal recommendations
These are a few practical steps that an unmarried mother can take to ensure her rights and responsibilities are clearly defined and legally supported.
a) Document all parental responsibilities:
Keep a detailed record of daily, weekly, and monthly responsibilities regarding the child’s care. This includes who is responsible for feeding, clothing, schooling, and other major care aspects. Detailing such responsibilities could be helpful if legal or custody issues arise.
b) Maintain records of financial contributions:
Document all financial expenses for raising your child, including daycare, school fees, healthcare expenses, etc. Track any financial support you may receive from the father or others. This could be useful if the mother is involved in legal matters concerning child support.
c) Consider establishing a formal custody agreement:
Even if you are unmarried, having a formal custody arrangement can protect both parties and establish clear expectations. This helps avoid future conflicts regarding visitation, decision-making, and other co-parenting issues.
d) Register the agreement with relevant authorities:
Once a custody agreement is established, it’s important to register it with a family court. This ensures the arrangement is legally binding and enforceable, providing added protection if disputes arise in the future.
*Article 410 of Federal Decree-Law No. 31/2021 on the Crimes and Penalties Law
