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Question: I read about the changes made to laws around extramarital relationships in the UAE. Can you explain these changes to a layman like me? I am in a delicate situation right now; suffice to say that I am involved romantically with a married woman, who is not happy in her marriage. Can you please guide me on what I need to do to legalise my relationship with her? Thank you.
Answer: It is noted that you are romantically involved with a married woman, and you wish to know how the lady may end her marriage and the two of you may legalise your relationship, going forward. If your relationship with the lady also involved sexual cohabitation, then invariably the laws regarding adultery in the UAE will have to be referred.
Adultery used to be a punishable offence under Article 356 of the Federal Law Number 3 of 1987 on the Issuance of the Penal Law (the Penal Law). As such, by the provisions of Article 356 of the Penal Law, the act of sexual cohabitation (even consensual) without marriage between two individuals used to be a punishable offence. This was called the offence of indecent assault. The said Article 356 read as follows:
“Anyone who indulges in an indecent crime of assault with a mutual consent shall be punished by way of imprisonment for a minimum period of 1 (one) year.”
In November 2020, Article 356 of the Penal Law was entirely amended by the Federal Decree Law No (15) of 2020 (“FDL 15/2020”), and thereupon the provisions for indecent assault were entirely removed. As of December 2021, unmarried couples can share the same accommodation, and sexually cohabit without marriage in the UAE. But the position wasn’t clear for couples, where one of the parties is married.
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However, by the new UAE Decree Law No (31) of 2021 concerning the Penal Code (the New Penal Law) this position shall change. The New Penal Law is going to be effective from January 2, 2022, whereupon the existing Penal Law is expected to be abrogated and replaced entirely.
By Article (409) of the New Penal Law, the offence of indecent assault has been reintroduced, with some modifications. Following this, a criminal action in respect of ‘indecent assault’ can be initiated only upon the complaint of husband or legal guardian of the female involved in the relationship. Also, the offence, proceedings and penalties, shall lapse if at any time, the complainant (i.e., husband/ guardian) retracts the complaint. A rough translation of Article (409) is provided hereinafter for your reference.
“Article (409):
“Shall be punished with imprisonment for a period for not less than 6 months, anyone who committed with consent indecent assault with a female or sodomite with a male who has completed (18) eighteen years of age.
“A criminal case for the crime stipulated in the previous paragraph shall not be filed except on the basis of a complaint from the husband or legal guardian.
“In all cases, the husband or legal guardian may waive the complaint, and consequence of the same is lapse of the criminal case or the suspension of the execution of the penalty, as the case may.”
Pursuant to the above, it is advisable for you to refrain from indulging in sexual cohabitation with the married woman until she is divorced, otherwise her husband will have the right to file a criminal complaint against you and her. If her husband has sufficient evidence, you may attract penalty in the form of six-month imprisonment.
Nonetheless, your partner may elect to initiate proceedings for dissolution of her marriage with her current spouse, and in doing so, it is recommended that she obtains professional legal advice from a competent legal practitioner. Only upon dissolution of her marriage in accordance with the applicable laws, the two of you may pursue a romantic relationship in the UAE, with or without marriage.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.
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