At the outset, it must be noted that personal status legislation in various countries is intrinsically linked to the creed and values of society. Accordingly, states with an Islamic orientation are keen to ensure that their family laws are derived from Islamic Sharia sources, whereas states with a civil, or so-called secular, orientation derive their family laws from various sources without restriction or affiliation, with the aim of achieving the best interests of their societies, and so forth.
 

In the United Arab Emirates, we take pride in our Arab identity and Islamic faith as a source of legislation in relation to the Personal Status Law applicable to Muslims in particular — which forms the subject matter of this discussion. However, it must be borne in mind that Islam — like any religion — contains immutable principles as well as variable matters. A Sharia principle or legal rule is one directly derived from the Holy Quran or from the authenticated Prophetic Sunnah, and these constitute immutable principles that are not open to amendment. Conversely, jurisprudential principles and rules are formulated by jurists according to their understanding and perceptions, depending on the time and place, and no one has ever claimed infallibility for them. Consequently, it is natural for such principles to be subject to amendment and modernization, as they are human opinions and juristic reasoning that evolve over time according to changing circumstances and conditions, as well as place.
 

It should also be noted that:
“What is established in jurisprudential references is that matters relating to custody are not governed by definitive Sharia texts; rather, all that has been stated concerning them consists of jurisprudential opinions and interpretations intended to establish custody rules for the purpose of caring for the child and safeguarding the child’s interests.”¹ Accordingly, custody matters are among those issues that are variable and not immutable.

In my view, restricting custody exclusively to either the mother or the father is no longer compatible with contemporary realities, nor with the international reputation enjoyed by the United Arab Emirates in terms of its civilization and religious and social tolerance. Indeed, the Maliki jurists themselves adopted such a view in their own time, having stated in their writings that:
“Maliki jurists have mentioned that the father has the right to supervise the child with proper care and full follow-up in matters beneficial to the child, to raise the child upon noble morals, and to send the child to seek knowledge while undertaking the child’s upbringing and education. However, they stipulated that the father must return the child to the mother, making overnight residence with her mandatory, as stated in Mawahib Al-Jalil: ‘The father may supervise his child while with the mother, discipline him, and send him to school, but the child shall not spend the night except with the mother.’”²

If this was the opinion of the Maliki jurists more than 1,300 years ago — namely, that custody should be shared, whereby the child remains with the father during the day and with the mother at night, thus constituting joint custody between both parents — then what should be said today, given the economic and social transformations and the ease of transportation and communication among members of society, all of which have become readily accessible to everyone? Therefore, assigning custody exclusively to either the mother or the father and depriving the other parent from seeing the children except once or twice a week, or perhaps even once a month, constitutes a grave injustice to the children before it is an injustice to either parent. Consequently, there is a need to explore a new custody framework, namely joint custody between both parents over the children.

This should not be understood to mean that joint custody must necessarily be divided equally at 50% for each parent. It may instead be apportioned as 40% versus 60%, or 30% versus 70%, and so on, depending ultimately upon the best interests of the child. It may even amount to 100% in favor of one parent if the child’s welfare so requires, where one parent is unfit to exercise custody, in which case the other parent’s role would be limited to access or visitation rights only. However, as a general principle, custody should be joint.

In reality, nothing can compensate for the continuous presence of both the mother and the father. There is nothing more valuable to a child than a righteous father and a righteous mother. The child is the renewed fruit of building the future, as human life has, since the beginning of time, continuously renewed itself through successive generations. Parents have always borne the duty of preparing their children for the future. Just as states and governments are responsible for enacting laws and systems that achieve justice and sustainable development for their societies, they have likewise become obligated to exert every effort to enact the best legal frameworks that guarantee the care and protection of that renewed human fruit upon which the future shall be built — namely, the child.

The growing concern shown by governments worldwide toward children’s rights, in their modern humanitarian sense, should not divert attention from the necessity of developing legal rules relating to custody in a manner that is compatible with our values and our Sharia and humanitarian principles. This is particularly so given that the practical application of existing laws has demonstrated that they contribute to widening the gap between separated parents on the one hand, and between parents and their children on the other, thereby leading to the loss of children and undermining the very purpose of custody and guardianship, whose ultimate objective is to safeguard and protect the interests of minor children.

Accordingly, proposing new custody mechanisms has become a duty incumbent upon researchers and legislators. In this regard, I put forward the concept or principle of joint custody between parents in a manner that is compatible with the fundamental Sharia principles and rules, which are based upon the premise that parents and society bear responsibility for safeguarding and protecting the interests of minor children, particularly following the separation of the parents. The establishment of the concept of joint custody for Muslim parents following separation requires legislative provisions that courts can readily apply whenever the judge determines that such an arrangement is in the best interests of the minor children.
 

What, then, is the principle of joint custody that I wish to present from my perspective?

Parental care of minor children consists of two matters: custody and guardianship, without either of these matters being exclusively allocated to one parent. However, Islamic jurists categorized these responsibilities and rights between the parents, assigning what is termed “custody” to the mother and what is termed “guardianship” to the father. In reality, however, they were unable to establish or achieve clear distinctions between custody and guardianship, whether during the marital relationship or following separation, because — in my opinion — such matters are inherently incapable of separation by their very nature and instinct.

Allah Almighty created the male and the female and united them so that they complement one another in all aspects of life, including their joint responsibility in raising children, since caring for children is a burdensome task and an ongoing responsibility requiring cooperation and concerted efforts between both parents from birth until the age of majority. The Prophet Muhammad (peace and blessings be upon him and his family) stated:
“Each of you is a shepherd, and each of you is responsible for his flock … The man is a shepherd over his household and responsible for his flock, and the woman is a shepherd in her husband’s home and responsible for her flock.”

Accordingly, the responsibilities of custody and guardianship borne by the father and mother complement one another, with numerous overlapping aspects between them. Some have referred to custody as “guardianship of custody” or “primary educational guardianship,” exercised by the mother in her capacity as custodian and by the father in his capacity as guardian of the person. While the mother’s role may become more prominent during the early childhood stages, the father’s role during this phase of the child’s life is by no means absent. He provides, protects, and participates, directly and indirectly, in upbringing with all his capabilities in order to build the future life of their child.

If we set aside the father’s financial obligations toward the children — obligations specifically assigned to him under Arab laws — and regard them as separate from the framework of the parents’ joint responsibilities, there nevertheless remain many common responsibilities shared between the father’s role as guardian and the mother’s role as custodian. These relate to the upbringing of children and caring for them medically, socially, educationally, morally, and in every aspect necessary for the child’s growth into an independent and mature adult, at which point the responsibilities of custody and guardianship cease.

The mother’s custodial role is not confined merely to cleaning, feeding, and physically caring for the child; rather, it extends to educational and moral responsibilities closely connected to the guardian’s responsibility to care for, protect, raise, and guide the child in all necessary matters. However, this integration and harmony between parents in raising their minor children is unfortunately lost in many cases upon separation. Herein lies the role of the legislator, who seeks to protect the minor child by obligating parents to continue fulfilling their responsibilities toward the child. This objective can only be achieved through an agreement on joint parental care approved by the court so as to become binding upon both parties.

Where agreement proves impossible, there should be a judicial ruling defining the rights and obligations of each parent in relation to joint custody and guardianship over their children. Such provisions, however, are absent from the current legal texts of Federal Decree-Law No. (41) of 2024 concerning the issuance of the Personal Status Law, unlike Federal Decree-Law No. (41) of 2022 concerning the issuance of the Civil Personal Status Law. The reason for this remains unclear. Courts have likewise excluded this concept in judicial rulings relating to disputes among Muslims, despite the existence of cases demonstrating that joint custody serves the best interests of the children. Indeed, joint custody can be achieved where parents, legislators, and courts place the interests of the children above all else.
 

There is also an important matter that must be recalled:

The late Sheikh Zayed, may Allah have mercy upon him, stated on numerous occasions, in substance, that life has changed and that every member of Emirati society has become obliged to work and contribute toward building the family and society. Today, it is well known that the majority of women in Emirati society are employed in various governmental and private positions. Likewise, the majority of women from expatriate families residing in the State also work. Consequently, the rationale for preferring the mother in custody — beyond the child’s early years — no longer exists in practical reality.

The mother to whom custody is entrusted often goes to work and delegates the care of the children to domestic workers or caregivers, while at the same time the father is deprived of seeing the children except during limited visitation hours. This situation is inconsistent with the best interests and future welfare of the children.
 

As for joint child maintenance:

With respect to child maintenance, there must likewise be a change in the methodology whereby the father alone is obligated to bear all expenses of the child, especially now that working mothers may earn substantial incomes that may even exceed those of the father. Moreover, there are no definitive Sharia texts establishing the father’s sole liability for child maintenance. For example, the Holy Quran does not expressly impose child maintenance exclusively upon the father to the exclusion of the mother, nor is this found in the Bible. Rather, such responsibility arises from human instinct, nature, and moral values, for even atheists provide financial support for their children. Therefore, this matter falls within the category of evolving and non-immutable jurisprudence.

Accordingly, there is an urgent need for new legislation in this regard as well, whereby child maintenance obligations are apportioned between working parents according to each parent’s income and the needs of the children. This may be achieved by obligating both parents to disclose their respective incomes and requiring them to contribute jointly toward the maintenance of the children according to the circumstances of each individual case.

I firmly believe that if the matters I have addressed concerning joint custody and joint child maintenance are duly considered, this would have a substantial impact on divorce rates as well. The high rates currently witnessed would decline once both parents realize the difficulty of safeguarding the child’s best interests while living separately.
 

Lawyer / Mukhtar Mohammed Gharib

¹ The Book “Custody Provisions in Arab and Foreign Laws” by Dr. Ahmad Al-Rajoub.
² Dubai Court of Cassation, Appeal No. 4 of 1993 (Personal Status), page 436 of the Journal of Judiciary and Legislation issued by the Dubai Court of Cassation.