Spiegel Online Article from 20.06.2019
The „Spiegel Online“ published the following article on its website (in German):
The English translation can be read here below::
Custody in the United Arab Emirates
When Sharia discriminates against men
Hundreds of foreign fathers in the United Arab Emirates have been fighting in vain for years for joint custody of their children. Their cases show how sharia law also penalizes men.
By Christoph Sydow
The Sharia discriminates against women, giving them less rights in matters of inheritance and as witnesses in court. That is only part of the truth. Islamic law also discriminates against men. This is what many foreign men are experiencing in the United Arab Emirates (UAE) in recent years.
They all live as so-called expats in Dubai or Abu Dhabi. They met women, got married, started families, had children. At some point, the marriages disintegrated. And from there a personal nightmare started for hundreds of men.
Patrick Hoenicke is one of them. Born in Berlin, he married an Indian flight attendant in September 2015. In March 2017, his son was born in Dubai. The child has both, German and Indian citizenship. Shortly after his son’s first birthday, the mother and the boy moved out of their shared apartment. In the first six months after the separation, Hoenicke was able to bring his son home for about ten hours a week. Then his wife decided to stop the contact between father and son. Hoenicke had to apply to the court to be allowed one visit per week. In a playroom in his wife’s house, he was allowed to see his son for two hours in her presence. This happened most recently in March. He now has to apply again to the court for the next visits .
Iradj El-Qalqili fared even worse. Seven years ago, the Berliner married a Canadian, whom he had met in the UAE. In 2013, his wife gave birth to a son, a year later to a daughter. Two years ago, his wife moved out with both children, for more than a year he has not seen his son and daughter.
These difficulties stem the family law in the Emirates, which is based on Sharia. Sharia law applies rigid age limits: Custody for boys under 11 and girls under 13 is usually awarded solely to the mother. Only later custody may be transferred to the father. At about these ages, children in the Emirati society are being introduced to public life, for which the father is responsible in the conservative Islamic culture of the Gulf State – which explains this legal approach. There is no concept of shared custody. The father has to pay for the upkeep of the children, for the school fees, the nanny. He is allowed to see his children only a few hours a week – or, if the mother wants to prevent it, often not at all.
Clearly, the legal situation in the emirates is fundamentally different from German law. „In custody disputes, a German court must always focus on the best interests of the child, but the UAE deviates significantly from this concept, because they assume that the mother is better suited to take on sole custody without examining case-by-case“ explains Professor Christian Majer, Director of the Institute for International and Foreign Affairs Private and procedural law in Ludwigsburg. „This approach results in clear gender discrimination, and fathers have no way of showing that they are better at caring for the child, so fathers are generally disadvantaged.“
Part of the problem is also on the German side
What in particular the young children want, is often irrelevant in Emirati courts. Usually they are not being heard. Instead, the court refers regularly just to the age of the children in the judgment, reports Jana Maria Wernitzki. The Berlin-based lawyer specializes in international family and children’s law and also represents her clients Hoenicke and El-Qalqili .
However, in theory things should be quite different: Expats in the UAE can request that their respective national law is applied. Then the judges in Dubai would evaluate a case based on the paragraphs of the German Civil Code, also with regards to the right of access and custody. El-Qalqili had relied on this approach. In reality, however, Sharia law is preferred by the judges. Emirati lawyers say that this is the case if the foreign law is not clear to the judges or seems to contradict Sharia law.
Lawyer Wernitzki also sees part of the problem on the German side. The standards of German law are not always sufficiently clear for the foreign courts.
Courts in the Emirates, for example, replace the rather broadly defined legal concept of „best interest of the child“ of the German Civil Code simply with the rigid age limits according to Sharia law. An extensive, case-by-case analysis of the “best interest of the child” is mandatory for German courts, but is omitted regularly by the Emirati courts.
One particular reason why the interpretation of German law may lead to misunderstandings in other countries, is that there is a rather outdated and therefore unfortunate differentiation between children born to married parents and children born to unmarried parents. Lawyer Wernitzki explains: „Our law and our jurisprudence are based on the conviction, that it is fundamentally in the best interest of the child that the parents exercise parental authority together, regardless of whether the children are born to married or unmarried parents, but it would be desirable for our law to spell this principle out even clearer.“
However, in comparison to German law, Spanish law is already more concise – which helped Borja Brananova to make history some months ago. As the first expat ever, he has obtained joint custody of his two children, who are four and six-year-old, in a court in Dubai, which he shares with his South African ex-wife.
His case has caused a stir both in the expat community in the Gulf country and in Spain. The Spanish authorities intervened after the Asturias regional parliament passed a resolution and after more than 25,000 people signed a petition to allow the children to travel to their father’s family in Spain.
The case of Brananova also instills hope to the German fathers in Dubai: this precedent shows that the authorities in the Emirates can indeed apply foreign laws when an expat’s government intervenes. This is particularly true because right now Dubai has an economic interest in attracting families and keeping them in the emirate. The expensive private schools have become an important economic factor there. However, the fact that more expats could understand, what kind of family drama and separation may be in store for them, may endanger Dubai position as location and economy, where 85 percent of residents are foreigners.
Real estate prices have fallen significantly in recent years, as the economy is not growing as expected – in order to limit the exodus of capital, the UAE took a historic step in May: expats can for the first time ever obtain the permanent right of residence. This shows that the government is trying to persuade expats to stay.
In this situation, El-Qalqili sees several options for the UAE and children affected by divorce: „Either the courts actually apply the very liberal element of the current UAE law allowing expats to use their own law, as they did for the first time in the Brananova case. Or the government sets up separate courts for expats and UAE citizens, maybe even with judges from abroad Another solution would be to modernize the laws of the UAE so that no expat law is needed. In any case the UAE definitely have an opportunity here to present the country’s enlightened courts as unprecedented lighthouse project in the region. „