Case Summary:
The Wife requests for a fault-based divorce from her husband and seeks custody of their three sons. The wife states that although their marriage had been tumultuous since the beginning, with her husband mistreating her, being verbally abusive towards her and neglectful towards the family, for the previous 4 years they have been separated and the husband had completely abandoned their conjugal bed. Although the husband was a prominent business man, he did not consistently provide for her and the children as he did before their separation. The wife was not formally employed for the past 20 years although she did help her husband set up his business. The wife reveals that she filed a divorce case in Switzerland which was dismissed by that court due to lack of jurisdiction. The wife requests the court to apply the Swiss law for the divorce matter, dividing jointly owned properties between them, but seeks the application of the UAE laws in the matter of custody as Swiss law did not have provisions for the same. The husband on the other hand, denies all the allegations made by the wife and asserts that the wife was deceitfully trying to enrich herself with this divorce case. He states that he has been providing for the family but the wife was not trustworthy with the funds and tended to use his money selfishly for her own enjoyment. However, he acknowledges their separation since the past four years. He asks the court to dismiss the case as the previous divorce case filed by the wife before the Swiss court was rejected by that court. The husband insists on the application of the UAE laws to this case.
First Instance Court (“CFI”) findings:
The court dismisses the wife’s request to partly apply the Swiss laws to the case stating that she had failed to produce the full law in the prescribed format as per Article 13 of the Law of Evidence in Civil and Commercial Transactions. Furthermore, Swiss laws did not contain any provisions regarding custody. However, the court granted a fault-based divorce as requested by the wife under article 19 and article 117 of the UAE Federal Law No. 28 of 2005 concerning Personal Status stating that abandonment of conjugal rights by the husband constitutes the type of harm that justifies the request for a fault-based divorce. The wife’s request for custody of her two minor children was also granted by the court as per article 146 of the UAE Personal Status Law which entitles the mother to custody of her minor children, even over the father, provided that she meets the necessary conditions for custody. In this case, both children had passed the age of maternal custody. Nonetheless, the court considered the fact that the father had not entered the country for over a year, and had also failed to seek custody in his petition before the court. The court however denied the wife’s request for custody over her oldest son as he had passed the age of 18, exiting the age of custody.
The court ruled to reject the wife’s request regarding the payment of backdated expenses to the wife and children citing that the husband had been providing for the family during the period of their separation. However, the court ruled to charge the husband to provide temporary maintenance in favour of the wife during the period of the divorce proceedings, granting her a substantial payment as per article 67 and as previously ruled by the court of cassation wherein it stated that the wife's maintenance by her husband is obligatory from the date the husband abstains from supporting her unless she is in breach of her marital duties or leaves the marital home without a legal excuse. The court also ruled to grant child support for the two minor children and the payment of their health insurance, as it was the obligation of the father to provide for his children as per article 63 of the Personal Status law. As the husband was already paying the rent and the tuition for his children, the court did not issue a decision in this regard. With regard to the oldest son, the court ruled that the son must directly approach the court if he seeks reimbursement of maintenance from his father as the former had attained eligibility to litigate in personal status matters.
Court of Appeal findings:
Both the husband and the wife appealed the decision passed by the Court of First Instance. The Husband requested the annulment of the order issued by the previous court and the dismissal of the case. He stated that the wife was wrongly granted custody of the two minor sons as the children have passed their custodial age. The court rejected this argument stating that the husband could not be given custody of the children as he travels intensively and has not been in the country for over a year. Furthermore, he had failed to seek custody in his original petition before the court. The husband’s contention that the case should have been dismissed due to it having been dismissed before the Swiss courts and pending before an Italian court was also rejected by the court. The court stated that the Swiss courts had rejected the case due to lack of jurisdiction, and there was no proof regarding pending suits or a final decree issued by any other court, making this argument invalid. The husband’s claim that the temporary maintenance granted to the wife was too high was accepted by the court and the court granted to reduce the maintenance amount.
The wife’s reason for appeal stated that the court had erred in not granting her partial ownership over her husband’s properties. This argument was rejected by the court as the court had applied the UAE laws to the case which did not provide for granting ownership of properties to the wife after a divorce. The wife’s contention that the court had erred in not charging child support for the oldest son was also rejected by the court. The court held that if the son desired child support, he was eligible to initiate legal proceedings against the father. As the documents did not contain anything to prove that he had permitted his mother to initiate legal proceedings on his behalf, the lower court had rightly ruled against child support for the son.
Court of Cassation findings:
Both parties again appealed the decision of the lower courts before the court of Cassation. The wife once again contended the court’s decision to apply UAE laws with regard to her divorce and alimony. She stated that she had provided a detailed memorandum explaining the provisions of the Swiss law, to the First Instance Court. She had also provided the appeal court with the translated and certified copy of the law as per the prescribed laws. But the appeal court did not apply the law, nor did it reopen the pleadings to analyse a separation agreement between the parties that had stipulated the application of the Swiss Laws in case of future disputes. The court held that the burden of proving and presenting a foreign law to the Court of First Instance falls on the party who insists on its application. The law considers foreign law to be a material fact to be decided as per the discretion of the trial court. Therefore, the party presenting the foreign law must establish evidence of its continued validity in their country in the prescribed format. Furthermore, a party cannot present the foreign law before the Court of Appeal as that would violate the principle of two-degree litigation and deprive one party of a degree of litigation against the other party. These are fundamental principles related to judicial organization and public order and helps in avoiding the application of two different laws to one subject matter. The wife’s request for share in the property of her husband as per Swiss law was also rejected by the court as the court had decided to not allow the application of the Swiss law.
The husband contended the court’s decision of granting custody of children to the mother by extending the age of custody. The court reiterated that as per article 156, the court had the power to extend the age of custody for the benefit of a child until the male reaches adulthood or the female gets married, whenever it is beneficial for the child to remain in the custody of their mother. Furthermore, the court observed that the husband had failed to prove evidence regarding his claim alleging his wife’s lack of trustworthiness in caring for her children.
The matter of the maintenance amount was contended by both parties before the cassation court. The wife argued that the award, which was further reduced by the appeal court, was insufficient while the husband claimed that the award was enormous and beyond his financial capability. The court ruled that the maintenance amount is determined as per article 63 of the personal status law taking into account the spender’s capabilities and the receiver’s financial condition. The court relies on its investigation to determine expenses and wages of the parties and uses its discretionary power to determine the amount of maintenance to be granted. Since the trial court reached its conclusion based on solid evidence in the records, aligning with the law without any violation, the cassation court is left with the task of re-determining the amount of alimony which falls outside the scope of scrutiny of the court of Cassation.
Accordingly, the court dismissed both cassations filed by the parties.
In Conclusion, the Court of Cassation made two important observations in this case. The court ruled that a copy of foreign law cannot be presented before the Court of Appeal by one party as it would violate the principle of two-degree litigation, depriving the other party of its rights. It may also result in the application of two distinct laws to a single subject matter. The court also ruled that the maintenance amount granted by the court is decided after taking into account the spender’s capabilities and the receiver’s financial condition, and relying upon its investigation. The trial court has discretionary power to decide the quantum of maintenance based on the evidence on record. Unless there is a violation of law, this amount will not be altered by the court of Cassation.
Cassation Appeal No. 119 of 2023, Personal Status Appeal
Frequently Asked Questions
1. In a custody case, who can claim child support from the father if the children are over 18 years old?
In a custody case, if the children have exceeded the age of 18, they themselves must initiate the necessary legal proceedings to claim child support from their father. The mother is not entitled to claim child support on their behalf unless she holds a duly verified power of attorney that explicitly authorizes her to act for them in such matters.
2. What will be the consequences if a litigant failed to submit the evidence requested by the Court in a civil matter?
Pursuant to Article 13 of Federal Decree-Law No. (35) of 2022 Promulgating the Law of Evidence in Civil and Commercial Transactions, if a litigant fails to submit the evidence or complete the evidentiary proceedings required by the court in a civil matter, the judge may impose a fine of no less than AED 1,000 and no more than AED 10,000 by means of an unappealable decision. The court may waive this fine if the litigant provides an acceptable excuse.
3. In divorce case, can a party request Court of Appeal to apply their home country’s law when the UAE law was applied in the Court of First Instance?
No. If a litigant wants to apply their home country’s family law on a divorce case, he/she must request in the Court of First Instant. It’s too late to raise this request at Court of Appeal. Because it would violate the principle of two-degree litigation and deprive one party of a degree of litigation against the other party. These are fundamental principles related to judicial organization and public order and helps in avoiding the application of two different laws to one subject matter.
4. Does the court have the power to extend maternal custody beyond the standard age?
Under the UAE Personal Status Law, the court has the authority to extend the period of maternal custody if it serves the child's best interests. This extension may last until a male child reaches adulthood or a female child gets married. The court will examine the specific facts of the case to assess whether the father is a suitable person to be granted custody. If the father is constantly traveling and does not have time to stay with the children, he may lose his custody rights.
5. How does the court handle maintenance when a husband already pays for housing?
If a husband consistently covers the family’s rent and school tuition, the court may decline to issue an overlapping mandate for those specific expenses. This prevents double-recovery and ensures judicial intervention is targeted strictly toward unpaid necessities. The law aims not to impose an undue financial burden on the father, but rather to strike a balance between the best interests of the children and the actual financial capacity of the payer.
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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