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When A Marriage Breaks in the United Arab Emirates

June 2015 - Litigation & Dispute Resolution. Legal Developments by Motei & Associates.

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Shedding light on the application of the UAE Personal Affairs (‘Sharia’) versus foreign laws. The case of a Hindu divorce granted by the Sharia Court in the UAE to the wife with full custody of the kids as well as alimony.

The UAE recorded the highest divorce rate in the region. In Dubai alone, 1,129 divorces took place last year - more than three per day. Amongst the cited reasons, the most common is the pace of life style in the UAE that is supercharged by the “easy-come easy-go” approach that could be one of the main reasons for divorce among expats. 

Like many areas in the UAE laws, expats seem to be unclear when it comes to the specifics of the divorce process. While it can take spouses time to regain emotional equilibrium, there are serious challenges to be involved in a court proceeding claiming for the wife and children’s legal rights.

Article 1 of UAE Personal Status Law no. 28 of 2005 (‘UAE Personal Status Law or ‘Sharia Law’) gives expats residing in the UAE the right to select their home country personal laws to rule over their families disputes.

The story begins in 1986, when a Hindu girl finds her soul mate (Hindu) and gets married to commit for a lifelong happy family with her husband. Seeking for a secure future, the couple decide to move to Dubai. But unfortunately the unexpected down turn happens. Caught up in Dubai’s frantic life, the husband’s behaviour towards his wife changes dramatically. When all the family’s friends attempt to rift the gap between the couple and save the family proves fruitless, the wife, with the hope to restore peace into her life, decides to move out with her two children.

Under the intense financial pressure of living expenses in Dubai, the wife is forced to file a lawsuit against the husband before the Dubai Courts requesting financial support for her and her children (‘nafaqa’).

Before the Dubai Court of First Instance, the husband denies all his wife’s allegations and requests the Court to reject the lawsuit on the grounds that according the UAE Personal Status Law the wife’s right in ‘nafaqa’ is subject to her fulfillment of her matrimonial duties under Sharia Law.

The court of first instance decide that the fact that the wife had moved out of her husband’s house is a proof of her failure to comply with her ‘obedience duty’ towards her husband; hence, her request for ‘nafaqa’ must be rejected. The wife doesn’t accept the decision and files an appeal before the Court of Appeal. The wife finds its challenge in article 1 of UAE Personal Status Law no. 28 of 2005, which gives expats the right to select their home country law to rule over. In this respect, the wife requests the application of article 18 of the Hindu Act no. 78 of 1956 on adoption and maintenance (‘Hindu Act’) which gives the Hindu wife the right in a life time financial support from her husband despite the fact whether or not she has moved out from the matrimonial house.

After deliberation, the Court of Appeal overturns the decision rendered by the First Instance Court and orders the husband to pay his wife and 2 children the appropriate monthly financial support. Before the Dubai Court of Cassation (highest level of Court), the husband claims that the application of the Hindu Act is in conflict with the Sharia Law and must be rejected. The husband claims that under the Sharia Law the wife’s entitlement in ‘nafaqa’ is dependent on the wife’s fulfillment of her matrimonial duties to include her obligation of obedience to her husband. The fact that the wife has departed the matrimonial house on her own will, is considered, under Sharia Law, as ‘nashez’ (condescension/ non-submission of the woman to her husband’s needs and desires), hence, her right in ‘nafaqa’ must be forfeited. The Dubai Court of Cassation decides to reject the husband’s claims and confirms the decision rendered in favor of the wife by the Court of Appeal. 

The Court of Cassation has ruled that whereas the parties to the dispute are Indians, and the wife has requested the application of its home country law which doesn’t deprive a wife from her right in financial support if she decided to depart the matrimonial house, for valid reasons under the law, therefore the wife is entitled to financial support according to the Hindu Act. As for the conflict with the Sharia Law, the Court didn’t see reason for such conflict as long as neither of the parties is a UAE national nor a Muslim expatriate.

ABOUT THE AUTHOR: Ashraf El Motei LL.M.,MCI Arb, Motei & Associates Ashraf El Motei heads the dispute resolution practice in Motei & Associates, a Dubai based law firm. He specializes in civil, commercial and family disputes before local courts in the UAE and has particular focus on international arbitration.Copyright Motei & Associates, Attorneys at Law - Google+ 

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.