What is the law in respect of expats in the UAE not paying maintenance in their home country? Are garnishee orders effective as they would be in the home country? I am owed child maintenance as part of an agreed divorce settlement and my ex-husband now lives in the UAE. JM, South Africa
A garnishee order is also known as a ‘third party debt order’ and is issued after a lawsuit has ended but where monies owed have not been paid. Essentially, it compels a bank to automatically deduct money from an account to settle a debt and is often used in family lawsuits such as divorce and child cases.
As this is a complex legal issue, I sought expert advice from Dr. Hassan Elhais, of Al Rowaad Advocates and Legal Consultants. He advised: “If the expat is residing in the UAE and his wife is based in South Africa, the wife has the right to file a maintenance case in the UAE courts in the emirate where the expat is residing. Jurisdiction as per Article No. 6 of the UAE Personal Status Law No. 28 of 2005 is given to the courts local to the respondent (where the husband is based in this case). Once the wife files her case in the local courts she can request to apply the UAE or the South African Law.”
He says he has seen this happen in a Dubai court where a husband failed to comply with a court order and the wife was granted access to his financial records. Dr Elhais added: “If there is a settlement agreement signed in South Africa and at the date of signature the husband was already UAE resident, such agreement might not be recognised in the UAE. However, the wife will still have the right to file a new maintenance case under the South African Law in the UAE courts, because article no. 1 of the UAE family law No. 28 of 2005 gave the expats the right to apply their home country law here.” While it appears that JM has the right to take action against her ex-husband for non-payment of child maintenance, I recommend she seeks advice from a lawyer in the UAE who has experience in this area.
Disclaimer:
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 expat 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
