Think custody of kids is automatic as an expat? Think again!
It’s sometimes necessary to talk about topics that are not exactly financial planning related, but are very much a part of securing a safe future for people and their families.
One of these topics is guardianship and custody of children. Now, this isn’t an issue that you’d bring up at convivials. It’s sombre, and sobering. It’s something people tend to keep on the back burner.
Nevertheless, let’s persist. Because it’s our job to help our clients plan for their futures. And that also means thinking about, and talking about, what-ifs that we hope won’t ever happen.
Again, let’s hope such a thing never comes to pass, but what if there is a loss of a parent? A missing loved one and carer? The first thing you’ll realise then if you’re a resident of the UAE, or anywhere in the GCC, is that guardianship rights might be very different to what many expats may be used to from back home. For one thing, foreign wills don’t automatically hold up in UAE courts. Shariah law applies instead.
And that then leads to complications that are particularly difficult to cope with in the midst of the grieving process. The last thing you want is to be pushing around paperwork while dealing with bereavement.
The primacy of a different legal system in the UAE means that custody and guardianship are different principles. Custody is about whom a child resides with. So the loss of a father will mean that custody passes to the mother. But guardianship is a different story. Guardianship means decision-making rights – and that includes education and financial management.
And here, the loss of a father will see guardianship responsibility pass to a male heir on the father’s side of the family. So it could quite conceivably come to a point where a mother’s brother in law has more rights over her child than she does.
Such an outcome can be averted, but the trick lies in the planning. The UAE gives non-Muslims the option to declare different arrangements – as long as they have actually applied themselves to registering the paperwork. The mistake people make is assuming that the law back home will automatically apply. Because it won’t.
There are options out there, but they can be a bit of a minefield for the uninitiated. For instance, the DIFC Wills and Probate Registry in Dubai is one way to go, but has its limitations. There is also the Registry in Abu Dhabi; but barriers are posed by the legal principles of Renvoi that come into play when there is a conflict of laws between territories. It’s not entirely straightforward – but is eminently possible in the right skilled hands.
The bottom line is that one must think about these issues, and make proactive arrangements ahead of time. Crucially, given the changing nature of regulation and interpretation around guardianship, custody and wills in general, it’s always best to approach a skilled adviser trained on the matter.
At the end of the day, securing a future means more than just financial planning. It involves taking contingencies into account – even unpleasant ones such as loss of health, of a job or even a life. And we would be failing our duty to you if we didn’t encourage you to think about these things, and plan ahead.
Blog published by Mike Coady.
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