Case Summary:
Wife files a case against the husband for
maintenance for herself and her daughter, and the
custody of the child. The wife states that the marriage between the two had been unpleasant from
the beginning, due to constant absence of the husband in the
marital home, or the husband returning
home drunk during late hours of the night, subjecting the wife to
verbal abuse, and not providing for the family in spite of
the husband’s substantial income. The wife claims that as a
result, she was forced to obtain financial assistance from
her brother and family. She also states that the husband expelled her and
their daughter from the marital domicile, forcing her to live
with her brother until she travelled to her home country
India. She then enrolled her daughter in a school and
returned to the UAE.
The husband contends the claims made by the wife. He states that it was the
wife who left the marital domicile after demanding a divorce
from him. Disputes occurred between them as the wife would go out without
his permission. He states that she did not reside with him in
his residence for two years, choosing to stay with her
brother. He also claims that the wife has instituted a domestic
violence case against him and his family. Despite the wife’s
actions, he has continued to provide for her and the
child by transferring money to the wife’s Indian account, but
do not want to bring her back to the UAE. He states that he is unaware of the
wife’s employment status.
First Instance Court findings:
As neither party requested the
application of the personal laws of their home country,
the UAE laws were applied to the case. The Court stated that
although the dispute is to be governed by
Federal Decree Law No. 41 of 2022, on Civil personal Status, as the question of domicile is not covered
by the
law, as per article 15, Law No. 28 of 2005 will apply for
matters relating to residence and utility allowances. The
court also stated that as per article 54 of the Personal Status Law, rights
and duties of spouses include legal
cohabitation, good treatment, and the
right to enjoy each other, among other things. As per the admissions of the parties, the
court concluded that the husband had provided a
domicile which was abandoned by the wife due
to the dispute between them and as she did not care about the
husband’s request to stay in the house. This constitutes a
breach of the conjugal obligations on her. The wife also did
not seek to return to the conjugal residence to preserve the
welfare of the family, but rather for the husband to pay for
her residency and provide for her in the
UAE without being bound by her
marital obligations, using their daughter as a means to
achieve what she seeks. Consequently, the court rejected the
above requests. The court also observed that the child is required to be with
the custodian to ensure proper care and welfare of the child,
but she was currently not in the custody
of the mother. The wife cannot argue that she left the child in India and
traveled to the UAE to file her case, as
remote litigation has become easier. Consequently, the court
ruled to reject the wife’s request for custody.
Regarding maintenance and backdated expenses requested by the
wife, the court stated that as per the civil status law,
equality between man and woman
is paramount. Article 9 of the law provides for maintenance to be given to the
wife, post a divorce, subject to certain conditions. However,
as per jurisprudence, in case of non-Muslims, if each spouse
has an income sufficient to support itself, then there is no
maintenance for either of them over the other. In the instant
case, the husband failed to show that the wife has a
source of income, and he admitted to continuing to provide
for the wife. Moreover, the husband did not request that the
wife’s request for alimony
be dropped due to her abandoning the conjugal residence
without legal justification. Consequently, the court charged
the husband to pay a maintenance amount to the wife. However,
the court did not provide for backdated expenses. The court
also ruled that although both parties must equally contribute
towards the maintenance of the child as per articles 4 and 9
of the Civil Status Law, the husband must pay child
support and the tuition fee for the child, as he is the
sole provider for the family. The court rejected the wife’s
request for temporary maintenance.
Court of Appeal findings:
The wife appealed the decision of
the Court of First Instance stating that the court erred in its ruling to
reject her request for domicile residence. The court stated that as per
articles 54, 74 and 75 of the Personal Status Law, spouses
have the right to enjoy each other, and must live in the
conjugal domicile. As both parties acknowledged the dispute, and as the
marital relationship still stand between them, the court
quashed the previous ruling and re-ruled to charge the husband to provide the
wife a conjugal domicile in his residence. The wife also
faulted the ruling rejecting her request for custody
of the child. Article 146 of the personal status law states that the
mother will have the right to custody of a minor child whether the marriage is existent, or
terminated. As there were no grounds to
prevent the custody of the mother, the court re-ruled to
grant the custody of the child to the mother.
The wife’s request that she be reimbursed the money spent
towards the child’s school admission process was considered to be valid by the
Appeal Court as the husband had implicitly consented to the
child’s admission in the private school, and as he had been
transferring money to the wife, for the child. However, the court ruled to
reject the wife’s contention that the
child support ruled by the lower court is insufficient. In
the light of the difference in the value of currency and the
cost of living between UAE and India where the child is
currently domiciled, the court determined that the
child support amount is sufficient for the ten-year-old
child.
Court of Cassation findings:
The ruling of the Appeal Court
was contested by the husband. The husband faulted the ruling charging him to
provide conjugal domicile to the wife, despite the fact that
it was the wife who abandoned the marital residence in the
first place. The court cited article 63, 74 and 75 of the
Personal Status Law which obligates the husband to provide
for the maintenance
of the wife, and domicile is part of that maintenance. The
marital residence must be in the
husband’s place of residence, unless the marriage
contract stipulates otherwise, to achieve cohabitation, kindness, and mercy between
the couple. In the event of a dispute, the judge shall
consider the interests of the family and its stability, so that it is able to
play its role in raising children in a sound manner. The
court also added that the ruling does not specify that the
husband is required to provide a new domicile, or pay
a rent allowance to the wife. The residence to be provided to
the wife may be the same as the
previous residence. Accordingly, the court ruled that the
husband’s argument is invalid.
The husband also argued that the ruling to grant
custody of the child
to the mother was erroneous as the mother had proven to be
careless in the affairs of the child by leaving the child in
India to travel to the UAE to file a case even though she had already filed a
case in India. The court rejected this argument stating that
as per article 149, the mother has the right to custody of a
minor child over the father and other members of the family. Additionally, the
mother satisfies all the requirements for
custodianship as stipulated in Article 143 and 144 of the
Personal Status Law. As the contested ruling is justifiable,
established by the documents, and leads to the conclusion reached by the
Court of Cassation, the court ruled to reject the arguments
put forth by the husband.
Regarding the husband’s argument that he is not
liable to reimburse
the expenses incurred by the wife while enrolling the
daughter in school as one of the correspondences between the
couple showed that he explicitly objected to the enrollment, the court stated
that as per article 78 of the
Personal Status Law, it is the obligation of the father to
undertake the expense of the child who does not have a source
of income. The conclusion reached by the Appeal court is
justifiable and supported by the husband’s admission that he sends a
monthly amount of money to the wife, including the
tuition fee- which indicates that he consented and accepted
the payment of the tuition fees. Accordingly, the court ruled to dismiss the
cassation.
In conclusion, in the interest of the
stability of the family, and to ensure cohabitation between
the couple, the marital residence must be in the husband’s
place of residence unless the marriage contract stipulates otherwise.
Cassation Appeal No. 249 of 2023, Personal Status Appeal
Frequently Asked Questions
1. Where must the marital domicile be established under UAE
personal status law
principles?
The UAE Court of Cassation says the marital home must be
legally set at the husband’s place of residence unless the marriage contract
specifies something else explicitly. This rule is designed to promote
legal cohabitation, kindness and family stability. And even if the wife had
left after an earlier quarrel, the court can direct the husband to provide a
conjugal domicile that can be his
existing residence rather than a freshly rented one.
2. If a mother leaves her child abroad temporarily, does she lose her
custody rights?
No. According to the law of the UAE, the mother has an
absolute right to custody of a minor child under maternal age
as against the father. Travelling to manage
legal affairs does not constitute negligence or
disqualify her from being granted official custody as long as
she meets the basic legal requirements of fitness, safety and
morality.
3. How do the UAE courts determine the amount of
child support for children living outside the UAE?
In relation to child support, the
UAE courts are aware of the obvious disparities in currency
values and the actual cost of living between the UAE and the child’s foreign
residence. For example, if a minor resides in a country such as
India, the court shall determine an amount that is
legally sufficient for the child’s age in that
local economy. If the present allowance is enough to
cover local living costs, the court will reject claims for
higher support.
4. Does a father have liability for school expenses when
he originally objected to the enrollment?
Yes, a father can be held responsible for school costs, even if he objects
at first. Under UAE law, the father is legally required to
pay all the costs of the education of the child, if the child
does not have an independent income. If the father continues to send
voluntary monthly financial transfers that have tuition
portions within them, the court looks at this ongoing financial behavior as
implicit legal consent and acceptance of those
tuition expenses.
5. What UAE law will be applicable to marital domicile issues if the Civil Personal Status Law is
silent?
The UAE courts will always apply the Federal Law No. 28 of 2005
(the Personal Status Law) where the
Civil Personal Status Law (Federal Decree-Law No. 41 of 2022)
does not set out specific issues such as the marital domicile. Article 15 of
the No.28 of 2005 Personal Status Law also allows for personal status rules in
customary law to be used to resolve complex issues such as
conjugal residence, utility allowances and
general obligations of family cohabitation.
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