Case Summary:
Plaintiff files a case against the defendant
who is her ex-husband, seeking maintenance in the form
of backdated expenses and child
support and related expenses for their child. The plaintiff states
that although she had been an exemplary wife to the
defendant, and discharged all her duty as a wife and mother,
the defendant had failed to reciprocate. He allegedly treated
the plaintiff with cruelty, hostility, humiliation, and
disrespect, since the beginning of their
marriage, and was negligent of his responsibilities towards
the family. Despite having a high income, he did not provide
financial security
to his family, forcing the plaintiff to exclusively bear all the
financial expenses. As a result, she was compelled to move
out of their marital house and file for divorce in
an Indian court. She filed the current case to claim the
remaining rights for herself and her daughter.
The defendant contended the plaintiff’s claims stating that he had attempted
to reach a settlement with the plaintiff during the
family guidance proceedings but the claims made by the
plaintiff were excessive and unreasonable. He stated that he
pays the rent towards the marital residence, which was abandoned by the
plaintiff, when she left the residence with his daughter,
without any justification. He claimed that he had a limited
income due to his new business, and he was terminated from his
previous employment as he was unable to perform well at his
job due to his marital problems. But he continues to cover the
tuition fee of his daughter. He however admitted that he
stopped providing maintenance in the form of food, shelter
etc., once the plaintiff abandoned the marital home.
First Instance Court (“CFI”) findings:
As neither party
requested the application of the personal laws of their home
country, the UAE laws were applied to the case. Regarding the plaintiff’s
request to be granted backdated expenses, the court ruled
that although it is the duty of a husband to provide for the maintenance of
his wife, covering food, shelter and other related expenses
as per articles 66 and 67 of the Federal decree Law No. 28 of 2005, the law does not apply in this
case as the parties were non-Muslims,
and they had different sets of obligations and rights towards each other.
The wife was not bound to the husband in the way that
Muslim women are bound to their husbands. The parties were
equal in dependency since the husband cannot marry someone else as long as he
is under the bond of marriage. Thus, he is restricted to her
the way she is restricted to him. Additionally, he does not have authority
over her according to their religious belief, as he cannot
command her to obey him, nor can she comply with his
commands. Instead, they are equal in rights and duties. Thus, a
non-Muslim husband is not obliged to pay for the wife if she
has enough income to support herself. Additionally, the plaintiff admitted
that she undertook the expenses without any intention of
returning to the husband, showing that it was voluntarily
done by her. Accordingly, the court ruled to
reject the plaintiff’s request. However, the court charged
the defendant to provide child support, allowances towards
utility bills, payment of tuition fee and
health insurance for his daughter as it is obligatory for the
father to provide these expenses for his child, when the child does not have
any source of income. The court also ruled that allowance
towards custodial residential must also be provided to the
plaintiff as this too falls within the obligation of the father, and as the
mother did not own any residences.
Court of Appeal findings:
Both the plaintiff and the
defendant appealed the judgement of the
Court of First Instance. The husband stated that the
judgement was wrong in charging him with the payment for the
custody residence as it was the plaintiff who left the
residence without any justification. This contention was
accepted by the court. The court stated that the husband
cannot be faulted for not paying the custodial residence from
the day she left the marital house and the court re-ruled to charge the
husband to pay such allowances only from the
date of the filing of the case. The plaintiff faulted the
decision of the lower court for rejecting her application for
backdated expenses. The court stated that a woman has the
right to seek reimbursement of expenses if she can prove that the expenses
were incurred by her with the intention to
claim the reimbursement from the husband. Otherwise, such
expenditure by a wife will be considered to be voluntary. The
court observed that the plaintiff’s submissions lacked
assertion or proof as she was unable to show that her husband
was financially well off, that the expenditure was made after
an agreement or a court order or that she intended to
claim reimbursement of money. The court determined that the
challenged judgement had accurately applied the laws and
therefore, the plaintiff’s contentions were rejected.
However, the court directed that this will be the sole reason for the
rejection of the request for backdated expenses, and the
distinction between Muslims and non-Muslims must not be
endorsed.
The court dismissed all the other demands made by the parties
as they were merely repetitions and the judgement of the
trial court was based on solid evidence and arguments.
Court of Cassation findings:
The decisions issued by the
Appeal court was challenged by the plaintiff and the
defendant. The plaintiff contended that she must be
reimbursed for the expenditures made by her, during the
course of the marriage. The cassation court rejected this
contention stating that the plaintiff had failed to provide any
proof that she had any intention of obtaining reimbursement
of expenditure at the time the expenditure was made. When a
wife spends on her family, the default assumption is that she
does so voluntarily due to kinship, relation, or
customary practice. The court also pointed out that determining whether there was intention to
seek reimbursement, is a matter of fact to be decided as per
the discretion of the trial court, based on the circumstances
of the case, and documents and evidences presented therein.
Consequently, the Court of Cassation ruled to uphold the decision made by the
appeal court. The wife’s argument that the
maintenance amount charged to the husband was below the
sufficiency threshold was also
rejected by the Court of Cassation. The court stated that as
per article 63 of the personal status law, the maintenance
amount to be charged is determined based on the possibilities of the debtor,
the circumstances of the beneficiary and the
economic situation, in place and time, provided it does not
fall below the sufficiency level to secure what is necessary
for the beneficiary. Moreover, the determination of these
factors is to be made by the trial court based on the
facts and circumstances of the case. Thus, the contention
made by the plaintiff is essentially an argument regarding the
jurisdiction of the Trial Court in assessing maintenance, which is beyond the powers of
the Court of Cassation. Therefore, the argument was rejected.
The defendant’s appeal argued that the Appeal Court had
wrongly ruled to charge him with providing the
residential expenses to the Plaintiff, even though the
plaintiff was the one who abandoned the
marital residence without any justification. The
court explained that as per article 63 and 78 of the law, alimony or
maintenance includes money and other necessities such as
food, clothing, housing, medicine, transportation, and
domestic services. The alimony of a small child who
has no financial resources is on the father until the
marriage of the girl, if it’s a daughter. According to
article 148, the father is obligated to provide residential
allowance to the custodian who
is fostering his child, unless the latter owns a
dwelling in which she resides. As it was established that the plaintiff does
not reside in the marital house, the defendant was rightly
charged to provide custodial allowances to the plaintiff.
Thus, the court rejected the argument of the defendant, and
duly dismissed the cassation.
In Conclusion, as per the Maliki school of thought, a wife
has the right to demand reimbursement from her affluent
husband for what she spent on herself or her minor child if
she proves that she intended to seek reimbursement from him
later. But the default assumption is that when she spends, she does so
voluntarily due to kinship, relation, or customary practice.
Cassation Appeal No. 16 of 2023, Personal Status Appeal
Frequently Asked Questions
1. Does the Muslim and non-Muslim couple has the same
obligations?
No. The muslin and non-Muslims had different sets of
obligations and rights towards each other. The wife was not
bound to the husband in the way that Muslim women are bound
to their husbands. Therefore, a non-Muslim husband is not
obliged to pay for the wife if she has enough
income to support herself as per the above judgment.
2. Does moving out of the marital home affect a wife’s right to
custodial residential allowance?
If a wife leaves the marital residence without
lawful cause, her right to a custodial residential allowance
might be affected for the period she is away. The husband
shall not responsible for housing expenses from the time the
wife left the house. However, he can be ordered to pay the allowance from the
date the litigation was started if the wife did not have a
residence.
3. When is a father liable for his daughter’s tuition and health
insurance?
A father is legally responsible for paying expenses such
as his child’s tuition fees, health insurance and utility
allowances when the child has no independent source of income. This is a
compulsory obligation under the UAE Personal Status Law. The
court upholds these obligations to ensure the child’s welfare is
maintained, regardless of the marital disputes or the
mother’s personal income, provided the father has the
financial means to pay. The father needs to pay the
maintenance to his daughter until the age of marriage.
4. What is a Maliki principle on Reimbursement Claims in Family Court
Proceedings?
According to the Maliki principle, a wife is entitled to
claim reimbursement for expenses she incurred from her
wealthy husband, provided she can prove that she had the
intention to seek reimbursement from him later. In court, she is required to
demonstrate her intention to succeed in her claim. Therefore, her
submission should include any agreement or court order related to the reimbursement. In
other words, if she cannot prove she had such intention, the court presumes
that the expenses were a voluntary contribution based on
kinship or customary practices.
5 How can the Court assess
the threshold if the wife argues that the
maintenance amount charged to the husband was below the
sufficiency level?
The charged maintenance amount
shall be determined in accordance with the financial means of
the husband, the circumstances of the beneficiary and the economic situation
in place and time provided that it does not go below the
sufficiency level to secure what is necessary for the
beneficiary, according to the Personal Status Law. The
assessment of the threshold is a matter of fact that falls within the
discretion of the trial court, based on all the circumstances in the file.
Should the trial court have applied the law correctly, the
Court of Cassation may reject any argument on this point, as
it falls outside its scope of review.
About the Author
Dr. Hassan Elhais publishes educational analysis of UAE personal status and family judgments, including divorce, maintenance, child custody and inheritance. For readers researching family lawyers in Dubai, his case-study writing provides context for the issues considered by the courts. These educational summaries do not imply that the cases were handled by the author or his team.
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