The Need for Guardianship for your Children

For expats living in the UAE, knowing about guardianship and custody of your children is vital. To cover such a ‘what if’ situation means preparing for the loss of life in the family, and to ensure that the child will benefit the most in such a scenario. Guardianship rights are likely to be different to what many expats are used to from their home country, and many may actually believe they are covered, when in fact foreign Wills do not hold up in UAE courts. This article should hopefully outline the rules in the region while highlighting the need for active guardianship.

Custody and Guardianship are different principles. Custody refers to whom the child resides with, whereas guardianship relates to parental rights, such as education or finance decisions. Under Sharia law, if the father dies, the mother may become the custodian of the child, but will not gain guardianship, which instead passes on to a male heir on the father’s side of the family. A mother’s brother-in-law may hold more rights over her child than herself, as a custodian cannot legally control the child’s assets

Moreover, foreign wills will not apply in the UAE, as the courts will only abide by Sharia principles. However, there are methods to assign guardianship to a family member of the expat’s choice. The most common way, of course, is to register a will at the DIFC Wills and Probate Registry (DIFC WPR), whose authority was reaffirmed by Dubai Law No. 15 of 2017. Specifically, it allows non-Muslims to divide their assets according to the laws of the country of their nationality. Parents can wish to only make reference to guardianship in a ‘Guardian-only-Will’ to allow temporary and permanent guardians to be appointed, or they can apply for a full Will to also include reference to assets.

DIFC Wills can be an invaluable instrument for protecting your family’s interests and building upon your financial planning. They provide certainty, testamentary freedom, common law principles, and guardianship rights. At AED 10,000 for a single will, AED 15,000 for a mirror will and AED 550 to update an existing policy, the cost is not insignificant, but a worthwhile investment and worth the cost when taking the protection of a child into account.

It is highly important to decide upon guardianship in a will as soon as possible, to ensure security. Guardians can either be temporary, to take care of children for an interim period of time, or permanent (testamentary). Permanent guardians effectively fill in the role of parents, taking on the responsibility of making financial, educational, and travel decisions, to name a few. In fact, it is always worthwhile to have this conversation with your own child as they grow up, to determine who they would feel comfortable with being their guardian if worst comes to worst.

If you have any more questions about guardianship or wish to seek any further advice on the subject, contact Graeme Field (Director and Head of Corporate Services, Credence International) at graeme.field@credence-international.com

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