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August 31, 2021
Infidelity is one of the grounds for divorce and it remains one of the major grounds for filing for divorce. That said, however, much depends on how infidelity can be proven before the courts.
In this article we would elucidate the various types of evidence that may be used before a personal status court in the UAE to establish infidelity:
The Federal Decree-Law No. 35 of 2022 Promulgating the Law of Evidence in Civil and Commercial Transactions (‘Evidence Law’) allows for all forms of written communication exchanged between the parties to be submitted as evidence.
Parties may submit relevant text messages, WhatsApp messages, emails or social media postings or messages as the relevant proof. Article 55 states, ‘Electronic evidence shall be treated as evidence in writing as provided for in this Law’.
However, due care should be accorded to the fact that the said written form of evidence is submitted to the court only when such evidence is received directly on your phone or you might have received this evidence accidentally without an ill intent of breaching your spouse’s privacy.
Recordings were taken whether as audio or video recordings cannot be submitted as evidence unless the consent of the person who is being recorded can be established. According to Article 431 of the UAE Penal Code, Federal Decree-Law No. 31 of 2021, when the recordings are taken without consent it would be a punishable offence.
Article 431 states, ‘Any person who interferes with the right to privacy and family life of individuals, shall be liable to a jail sentence and a fine, and that is if the person commits any of the following acts in other than the cases permitted by Law or without the consent of the victim:
Witnesses constitute a credible and highly important form of evidence before the courts. This is mainly so that the court can often derive an impartial understanding of the matter by hearing the witnesses and questioning them. A witness should be of 21 years of age and it is recommended that, if the party on whose behalf the witness is appearing is Muslim, the witness should also be Muslim.
As per the personal laws for Muslims, there should be either two male witnesses or one male and two female witnesses. The female witnesses are heard together while the male witnesses are heard separately. In the instance, the assistance of legal translators is required the court will provide such arrangements as well. On the contrary, there is no distinction between male and female witnesses under non-Muslim civil personal law.
The Federal Decree-Law No. 31 of 2021, which is the UAE Penal Code, decriminalized adultery. Before this, the previous law criminalized adultery and read as “Anyone who indulges in an indecent crime of assault with mutual consent shall be punished by way of imprisonment for a minimum period of 1 (one) year.” According to the new law, Article 409 criminalizes the act of voluntary sexual intercourse only when the complaint is raised by the spouse. Consequently, the lawsuit may be waived.
As discussed, certain types of evidence and practices are specifically disallowed in the UAE courts when proving infidelity. This is because UAE laws are very stringent in terms of the protection of the privacy of an individual or family. It should be kept in mind that certain types of witnesses are specifically not allowed to represent the interests of a person before the court, due to their relation with the said person, such as parents. It is always advisable to obtain proper legal advice and ensure that you are not breaching any local laws.
The above information might not apply if both parties are non-muslim. Starting from the 1st of February 2023, UAE issued specific family law to be applied between non-muslim expatriate residents in case none of them wanted to apply his/her home country's law in the UAE. To know more information about this law, please feel free to click this link.