One major area of discussion during the 2005 process of initially codifying Muslim personal status law in the United Arab Emirates (UAE) were regulations regarding the divorced mother’s right to custody of her minor children. The new rules regarding the allocation and duration of female custodianship are the outcome of fiery debates amongst various actors involved in the codification process. The new codified custody rules differ from traditional Islamic law and concede large discretionary powers to the judiciary. The courts’ discretion in allocating custody is verbalized in the term “maṣ laḥat al-maḥḍūn” (the welfare of the child under custody). At the same time, courts in the UAE have thus far refrained from defining in clear terms what actually constitutes the child’s welfare. While one of the major aims of the codification of Muslim personal status law in the UAE was to guarantee legal certainty, the reformed custody regulations do not serve this purpose. They rather point towards the legislator’s will to put in force more flexible rules on custody which allow for the accommodation of changing societal needs and values.
Laleh B. BakhtiarEncyclopedia of Islamic Law (Chicago: ABC Intl.1996) 470; Jamal J.A. Nasir The Islamic Law of Personal Status (3rd ed.) (Leiden & Boston: Brill 2009) 161; Ṣuwaynī (above n. 13) 48–50.