Case Summary:
Wife seeks
fault-based divorce, or alternatively, a khula from the husband, and custody of children, on the grounds
of physical and verbal abuse and psychological problems seen in the husband.
The wife claims that the husband is seen to interact with a
frog shaped doll, which has caused grave negative impacts on the children.
Unable to tolerate her husband’s harassment, the wife states that she has been
residing separately from her husband out of fear for herself
and her children’s well-being. The wife
requests the court to have the husband examined by a
psychiatric specialist. Due to the threats issued by
the husband, the wife claims to have obtained a
travel ban
for her children. She also seeks custody of the children as her husband’s psychological conditions and constant
travelling does not make him suitable to be given the
custody of the children. The wife also informs the court of
her husband’s immense wealth, consisting of
assets worth millions of dirhams, including stakes in
multiple entities, real estate around the world, yachts and luxury goods. The wife added
that despite his wealth, her husband has refrained from
financially supporting her and her children since she began
living separately from him. The wife requests the court to apply
Dutch Laws while adjudicating the matter.
The husband denies all the allegations by the wife and requests the court to
dismiss the divorce case filed by the wife. He asserts that
the allegations made by the wife were not supported by any evidence and that
their marital issues are of a temporary nature. The wife had
left the marital home along with their children, without any
justification. The husband states that he has always prioritized the wellbeing of his
children and the maintenance of a stable family life.
Furthermore, the husband contended that the wife had not offered any
compensation in return for her request for a
khula, thus making it
lacking on formal and objective grounds. The husband also
raises serious concerns on his wife’s ability to be the
custodian of their children. He alleges that the wife neglects her children and treats them
inappropriately.
She has also denied his visitation rights which prompted him to file police complaints against her.
The husband requests the court to direct his wife to return to their
marital residence with the children. In the event of a
divorce, the husband seeks
custody over the children, after referring the case to the
custody evaluation committee. He feared that his wife would
permanently deprive him of seeing his children by
relocating to a distant country.
The witnesses on behalf of the wife testified to the
aggressive nature
of the husband and stated that he may require
psychological help, while the witnesses on behalf of the husband denied witnessing any
aggressiveness on the part of the husband, but mentioned that the wife is
neglectful towards the children.
First Instance Court (“CFI”) findings: the wife’s request for
the application of the Dutch law was rejected by the court as
the wife had failed to certify the copies of the
law submitted to the court. The Court thus applied the
laws of the UAE
to the case. Regarding the wife’s request for a
fault-based divorce, the court held that the wife was able to
prove harm towards her, through
circumstantial evidence and the witness testimonials that
were made on her behalf. Moreover, the husband’s claim that the divorce case
was filed by the wife for financial enrichment was rejected
by the court. Subsequently, the court ruled to grant a
fault-based divorce
to the wife. However, the request for alimony was rejected as the court
reasoned that in a non-Muslim marriage, both husband and wife are equal in rights and therefore, the husband is not
under the compulsion to provide for the wife, particularly if
the wife is employed. The court ruled to charge the husband
to provide temporary and permanent child support for the
children, as it is the father’s obligation to provide for minor children,
specifically when they do not have a source of income. The
court also ruled to charge the husband to provide tuition, transportation
charges and health insurance as they come under the obligations of a
father towards his children. As the wife was the custodian of
the children, the husband was charged to pay custody charges and allowances
for residence, utilities and a domestic help.
Court of Appeal findings:
Both the husband and the wife
appealed the judgement issued by the Court of First Instance.
The husband alleged that the court had erred in its ruling regarding the divorce, the custody of children being granted to the wife, and the
quantum of alimony which was alleged to be unfair to the husband. The
husband's appeal was denied by the court. The court rejected
the husband's contention that the witness testimonial used to grant a fault-based divorce was unreliable. The court held that
as per article 122(4) of Law No. 28 of 2005, the testimonial
of a witness will be considered admissible if the witness satisfies all the
criteria as per Islamic law. The husband’s contention that
the wife was unsuitable for custody was also rejected by the
court, stating in the best interest of the children,
considering their young age, the wife would be the best caregiver for them.
The husband was unable to provide any new evidence in his defense, due to
which the judgement passed by the lower court will remain
unchanged and valid. The wife’s claim that the alimony and maintenance granted by the Court of First instance was
minimal and did not correspond to the wealth and income of the husband was
also rejected by the court.
Court of Cassation findings:
Both parties once again appealed
the judgement before the Court of Cassation. The
husband contested the reliability of the witnesses provided
by the wife and claimed that the quantum of alimony granted
was unfair. The court’s ruling regarding custody was also
challenged, stating that the court did not consider
the frequent travels of the wife and her other shortcomings,
while unfairly taking the husband’s travels and other shortcomings into
consideration. The court reiterated the importance of the
role of the mother in the early childhood development of
children. It determined that the lower court had
rightly granted custody of the children to the mother, and
charged the ancillary charges for the upkeep and wellbeing of the children. The court
also pointed out that the lower court had rejected the claims
for absolute alimony made by the wife. The assessment of
witness testimonials is made as per the discretion of the trial court and the
present court upheld the ruling in that regard. The wife’s contention
regarding the alimony charges granted by the
lower court was also rejected in its entirety by the Court of
Cassation. The court ruled that the assessment of alimony is
within the jurisdiction of the trial court.
In Conclusion, in the presence of
minor children, the court takes the best interest of the children into consideration and grants custody of the children to
the mother. The Federal decree law no. 28 of 2005 explicitly
states that the mother will have primary custody of children
until the age of 11 in case of sons, and until the age of 13
in case of daughters. The court determined that custody
during the early childhood stage is a matter concerning women
because during this phase of the child's life, they require care and nurture
for their well-being. The mother exhibits
greater compassion and care for her child and endures
hardships in ensuring their welfare. Thus, the presumption is
that the mother is the most entitled to the custody of her young child and has
a priority over others in this regard, even without her request, as it aligns
with the natural law. If the mother satisfies the criteria
required for custody, she is generally chosen to fill this role.
Cassation Appeal No. 110 of 2023, Personal Status Appeal
Frequently Asked Questions
1. Does the husband bear the same obligation towards the children’s support
no matter he is Muslim or Non-Muslim?
Yes. Although the non-Muslim husband is not under the compulsion to provide
for the wife if she is employed, he has to provide for the children who do
not have a source of income same as
Muslim husband. Thus, the husband is obliged to pay
the tuition fee, transportation fees, health insurance,
custody charges, house allowance to the custodial residence, utility bill
and so on.
2. What is Khula in the UAE Personal Status Law?
‘Khula’ allows a wife to seek divorce by offering the
husband something of value. This can be any property,
including the dowry she already received, while any unpaid
dowry is forgiven. Children’s rights,
maintenance, or custody cannot be used as payment. If the
husband unreasonably refuses, the court sets the terms.
3. If the children are young, will court usually grant the
custody to the mother?
In practice, when the children are young, courts usually grant
custody to the mother
unless she is proven unfit fails to meet the legal criteria
for a custodian. The mother is generally considered the
primary caregiver. If the father disagrees, he must present
strong and credible evidence to challenge the mother’s
suitability. Without such evidence, the court will likely rule in
favor of the mother, especially for young children who need
maternal care.
4. How can a spouse prove grounds for a
fault-based divorce under UAE family law?
A spouse can establish grounds for a
fault-based divorce by proving that ongoing harm makes the
continuation of the marriage impossible. UAE courts accept
both direct and circumstantial evidence, as well as witness testimonials, to
substantiate claims of physical, verbal, or
psychological abuse. According to the UAE Personal Status
Law, witness testimonials are considered admissible and legally reliable by
the trial court if the witnesses satisfy the established
criteria under Islamic law.
5. How do UAE courts evaluate conflicting witness testimony
regarding parental fitness and custody?
The evaluation and assessment of
conflicting witness testimonials rest entirely within the
sole discretion of the trial court. UAE courts analyze
testimonies from both sides to determine credibility
regarding allegations of spousal aggressiveness,
psychological issues, or parental neglect. Higher courts, including the
Court of Appeal and the Court of Cassation, will uphold the
trial court’s factual findings and custody rulings if they
align with the law and serve the best interests of the children.
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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