Does Adultery Affect Child Custody in the UAE?

How Does Adultery Affect Child Custody in the UAE Under the Law?

Article 115 of Federal Decree-Law No. 41 of 2024 covers disgraceful conduct by the custodian that would negatively affect the child in custody. In that case, the mother’s custody may be placed at risk and become subject to judicial assessment.

A separate rule applies to non-Muslims subject to the civil law. It is found in Article 18 of Cabinet Decision No. 122 of 2023 on the Executive Regulations of Federal Decree-Law No. 41 of 2022.

Under that Article, either joint custodian committing a crime involving honor or public morals may also lead to loss of custody. This reflects the legislator’s concern to provide a safe and stable environment for children.

The criminal offense itself is explained in our guide to adultery law in the UAE.

Does Adultery Automatically Cause a Parent to Lose Custody?

Mere allegations of marital infidelity do not automatically cause loss of custody. Federal Decree-Law No. 41 of 2024 distinguishes between two things:

• The conditions required in the custodian under Article 113.
• The grounds for loss of custody under Article 115.

This distinction means suspicions are not treated as a conclusive conviction. The effect on custody depends on the legal status of the allegation.

Infidelity Without a Final Criminal Judgment

There is no automatic loss of custody. The legal basis is Articles 113/2 and 115/1/e of Federal Decree-Law No. 41 of 2024.

Final Conviction Under Article 409

Custody is lost by force of law under Article 115/1/a upon a final criminal judgment. The judgment must convict the custodian of the crime of consensual intercourse under Article 409 of Federal Decree-Law No. 31 of 2021.

The reason is that a custody condition is no longer met. Article 113/6 requires that the custodian not be convicted of a crime against honor.

Waiver or Withdrawal of the Complaint

If the husband waives the complaint and the case lapses under Article 409/5, the assessment of the custodian’s suitability remains within the court’s authority. The timing of the withdrawal matters:

• Before a final judgment, the criminal case lapses.
• After a final judgment, the execution of the penalty is stopped, but the conviction itself is not erased.

These effects arise under Article 409/5 of Federal Decree-Law No. 31 of 2021 and Article 17 of Federal Decree-Law No. 38 of 2022. The assessment of custody remains for the court under Article 115 of Federal Decree-Law No. 41 of 2024.

What Evidence Does the Court Consider in an Adultery-Related Custody Dispute?

The court relies on conclusive and documented evidence in these disputes. Foremost is the final criminal judgment.

That judgment proves that an essential condition of custody is not met, namely not being convicted of a crime against honor. This is based explicitly on Article 113/6 of Federal Decree-Law No. 41 of 2024.

Speculation cannot be relied upon. The court judgment must be final to have legal effect in this regard.

The Court Also Examines the Effect on the Child

The court’s role is not limited to the criminal aspect. It conducts a full examination of all care evidence.

It also carefully studies how far the attributed conduct affects the child’s interest and psychological stability. Article 115/1/e of the same Law requires this.

Rumors Are Not Evidence

Rumors or mere allegations are never sufficient as evidence of conviction or grounds for loss of custody. The burden of proof always falls entirely on the party seeking to remove custody.

That party must provide tangible and legal evidence justifying the request before the court.

Evidence Obtained Unlawfully

UAE law absolutely prohibits collecting evidence by unlawful means, specifically spying on the other party’s private life. This prohibition is under Article 431 of Federal Decree-Law No. 31 of 2021 and Article 44 of Federal Decree-Law No. 34 of 2021.

The law punishes privacy violations, and evidence obtained by these unlawful means is not recognized before the court. Our guide on how to file an adultery case in Dubai explains how to preserve evidence lawfully.

How Do Custody Rules Differ for Muslim and Non-Muslim Parents?

Muslim Parents

Custody matters for Muslims are subject to Federal Decree-Law No. 41 of 2024 on Personal Status. Under Article 114, custody belongs to the mother first, in recognition of her primary role in caring for and raising the child.

Article 113/8 also allows a non-Muslim mother to remain custodian of her Muslim child. This reflects the flexibility of UAE legislation. It considers the child’s best interest and preserves the maternal bond without prejudice to the constants of faith.

The full list of custodian conditions appears in our overview of child custody in the UAE under the 2024 law.

Non-Muslim Parents

For non-Muslims, Federal Decree-Law No. 41 of 2022 on Civil Personal Status applies. Article 10 establishes that joint custody between the parents is the principle.

Joint custody applies equally as the general rule and continues until the child reaches 18 years of age. This ensures balance in parental roles.

Alongside this federal track, the Emirate of Abu Dhabi regulates a special civil track for non-Muslims under Law No. 14 of 2021. It provides an additional legal framework suited to the privacy of foreigners and residents in the emirate.

Does an Affair Matter If the Child Was Not Exposed to It?

Article 115/1/e of Federal Decree-Law No. 41 of 2024 requires that the disgraceful conduct have a direct effect on the child in custody. Describing the conduct as disgraceful is not enough.

The law requires proof of actual harm or risk threatening the child’s interest and safety as a result of the conduct. Personal conduct that the child was not exposed to, and that did not affect the child, does not by itself lead to loss of custody.

There is an exception for specific cases relating to preserving values and the child’s best interest. Article 113/6 of the same Law links the loss of custody to a final criminal judgment in a crime against honor.

In that case, the final court judgment is the conclusive legal basis that proves the act and justifies the loss of custody. It protects the child from any environment that may negatively affect moral and psychological upbringing.

For advice on a specific custody dispute, contact the Leaders Advocates team.

Official Legal Sources