Case Summary: wife files for fault-based divorce from her husband and custody of daughter and related maintenance charges. The wife claims that the husband forced her to leave her job. He is disrespectful towards her, insulting and abusing her, in front of their children, without any reason. The couple has two children, and the husband incites their son to hit her. She also claims that the husband injures himself and sends photos to her family claiming that she assaulted him. He also quarrels with her family, demanding that he be given dowry. The wife also claims that he suspects her of having illicit relationships and checks her phone. He has abandoned her marital bed for the past five years and only provides for food and clothing. She states that she finally filed for a divorce when the husband left her and the daughter alone to travel to India with his son.
The husband denied the claims made by the wife. The parties lived together in the marital residence paid for by him. He states that the wife began creating problems during the corona period, as she had left her job in a different country and moved to the UAE. He claims that she assaults him and their son who has mental issues. She has also relinquished her responsibility over their son. When the husband decided to travel to India for the son’s treatment, the wife refused to join, giving an excuse that the daughter had summer activities in the country. The husband continued to bear the family’s expenses while he was in India, and was astonished upon returning to the UAE to find that the wife had initiated a divorce. In an alternate case filed by the husband, he requested that the wife continue the marriage in obedience, and alternatively, in case the divorce is granted, the husband be given sole custody of both children.
Only one female witness appeared on behalf of the wife and she testified to the statements made by the wife regarding the husband’s behavior. She also stated that the son hated the wife and did not want to live with her. On the other hand, the male witnesses produced by the husband testified to the husband’s good character and added that the son was mentally ill. Witness 1 also stated that the wife was rude to the son.
First Instance Court findings: As neither party requested the application of their personal laws, the laws of UAE were applied to the case. As per article 7 and 8 of Federal Decree-Law No. 41 of 2022 on Civil Personal Status, if either spouse files for divorce, it will be granted without any need for justification of the request, or proving fault on the part of the other party. Consequently, the court granted divorce as requested by the wife. Accordingly, the husband’s request that the wife continue the marriage in obedience and fulfill her duties, was rejected by the court. Regarding custody of the children, the court stated that as per article 10 of the Civil Status law, both parents are entitled to equal custody of the children, unless one of them is disqualified to be a custodian, or actively seeks to give up the right to custody. In this case, as the wife has sought the custody of only the daughter, and the husband has sought sole custody of both children, the court granted joint custody of the daughter to both parents, and sole custody of the son to the father. The wife’s request for custody charges and custodial residence was rejected by the court as the duties performed by her towards the daughter was equally performed by the husband, and the couple lived in the marital house. The request for a servant was also rejected as the daughter was old enough to serve herself.
Regarding the wife’s request for child support, the court stated that the civil status law established the concept of equality between men and women in article 4 of the law. Article 10 further explains that both parents will have equal responsibility in raising their children, according to their financial status. However, as the wife is unemployed, which fact is not denied by the husband, the court ruled to charge the husband with child support, payment of tuition fee, and health insurance for the child in joint custody. The court however noted that the wife can request for child support only partially, for when the child is in the wife’s custody. The court also rejected the wife’s request for iddah allowance as she is not required to observe iddah period, making her free to marry another immediately after the divorce. The wife’s request for Nafaqah Mut’ah or compensation for divorce was also rejected by the court as this divorce was initiated by the wife.
Court of Appeal findings: Both parties appealed the decision of the lower court. However, the appeal court quashed the decision of the court of first instance on the basis of wrong law being applied to the case. The court stated that as per article 18 of the civil personal status law, the law applies to incidents that occurred or the cases that were filed after the law came into force. For the incidents that occurred or the cases that were filed before its enforcement, they shall be subject to the old law. As the case was filed before the law came into force, it should have been tried as per the personal status law. The case was referred to the court of first instance for adjudication.
Court of Cassation findings: The husband appealed the decision of the Appeal court for miscarriage of justice and application of the law, lack of causation, failure to examine the grounds of the appeal, and rejection of his requests, which requires quashing the ruling.
The Court of Cassation stated that regardless of whether the Civil Status Law or the Personal Status law is applicable to the facts of the case, the Court of Appeal should adjudicate the matter presented before it after applying the correct law. Unlike the Cassation Court, the duty of the Appeal Court is not limited to monitoring the integrity of the procedures before the Court of First Instance, but rather its function goes beyond that to adjudicate the dispute in all aspects, and even in matters that fall under the discretionary authority of the trial court. Accordingly, the court ruled that the husband’s appeal was valid and quashed the decision issued by the Appeal court, and returned the case to the Appeal court for re-adjudication.
In conclusion, the duty of the appeal court is not limited to considering the appealed ruling from a legal perspective or monitoring the integrity of the procedures, but rather its function goes beyond that to re-examine the dispute, even in matters that fall under the discretionary authority of the trial court.
Citation: Cassation Appeal No. 264 of 2023, Personal Status Cassation
Frequently Asked Questions
1. Is attendance of the defendant mandatory at the hearing in divorce case under new UAE Personal Status Law? Can the divorce go ahead without the defendant’s attendance?
No, the physical attendance of the defendant is not mandatory for the divorce to proceed. If the defendant has been dynamically and legally served with the court summons in accordance with the UAE Civil Procedure Law, their absence will not stall the litigation. The defendant maintains the legal right to appoint a registered UAE trial attorney to appear and present pleadings on their behalf. If the defendant is duly notified but fails to appear in person or through a legal representative, the court will proceed in absentia and is empowered to issue a binding default judgment. Furthermore, under Article 8 of Federal Decree-Law No. 41 of 2022 on Civil Personal Status (governing non-Muslim residents), a civil divorce is granted strictly upon the unilateral demand of either spouse without the need to prove fault or harm. Consequently, a defendant's refusal to attend or participate cannot be used to block or delay the issuance of a divorce decree.
2. What is a default judgment?
A default judgment—officially referred to in the UAE as a Judgment in Absentia is a binding, enforceable ruling issued by the court when a defendant fails to respond to a lawsuit, file a defense, or appear at scheduled hearings despite being legally served. When a civil or personal status lawsuit is initiated, the UAE Civil Procedure Law grants the defendant a strict statutory window to submit a statement of defense via the court's digital portal or to appear through a legal representative. If the defendant fails to take action after being duly served with a court summons, they forfeit their right to contest the claims or present counter-evidence. The court will not automatically rule in favor of the claimant; rather, the judge will independently examine the merits of the claimant’s unilateral evidence and pleadings. If the claims are found to be legally sound, the judge will issue a Judgment in Absentia, which carries the same weight as a standard judgment, subject to specific statutory appeal timelines for the absent party once they are formally notified of the ruling.
3. Is a default judgment entered when a party sends a lawyer to appear at the hearing instead of the party appearing in person?
No. Under UAE procedural law, a default judgment (Judgment in Absentia) will not be entered if a party is legally represented by a licensed UAE trial attorney. A defendant is not required to physically attend court hearings to be considered legally "present." By appointing a licensed advocate and granting them the appropriate legal representation authority typically executed via a notarized Power of Attorney (POA) or through the court's digital litigation portal, the attorney’s appearance satisfies all legal requirements. Any defense memorandums, pleadings, or submissions made by the authorized lawyer are legally treated as if they were made by the client. Consequently, the court will treat the proceedings as contested and the final ruling will be issued as a Judgment.
4. What are the main legal duties of the UAE Court of Appeal in family disputes?
Under the UAE judicial framework, the Court of Appeal functions as a second-instance trial court with the dual mandate of reviewing both questions of law and questions of fact. Governed by the devolutive effect of an Appeal, its primary duty is to re-examine the dispute on its merits within the scope of the appellant's specific challenges, rather than merely verifying the formal or procedural validity of the lower court's judgment. This comprehensive judicial function requires the appellate judges to fully re-evaluate the evidence, expert witness testimonies, and substantive claims presented at the first instance. In family disputes, where matters such as alimony, child custody schedules, and the estimation of financial maintenance rely heavily on judicial discretion—the Court of Appeal is empowered to independently exercise its own discretionary authority. It may substitute its own findings for those of the Court of First Instance if it determines the initial assessment was inequitable or misapplied statutory provisions, ultimately issuing a completely new, enforceable judgment that supersedes the lower court's ruling.
5. Can the husband request marriage in obedience and alternatively claim for divorce if the former request was rejected by court?
Yes. Under the UAE Civil Procedure framework, a claimant is legally permitted to introduce cumulative, conditional claims structured as primary demands and alternative/subsidiary demands within a single lawsuit. If the trial judge determines that the primary demand lacks merit or legal basis and rejects it, the court is procedurally obligated to immediately transition to adjudicate the alternative fallback claims (such as divorce, alimony, or child custody) in the same judgment.
However, the applicability of this specific legal strategy depends strictly on the governing personal status framework:
Under the Sharia-based Personal Status Law (Federal Decree-Law No. 41 of 2024 for Muslims): The concept of marital obedience and the right to claim it exists within specific statutory boundaries. In this framework, pairing a primary obedience claim with an alternative divorce/custody petition is a standard litigation mechanism used to protect the husband's legal position.
Under the Civil Personal Status Law (Federal Decree-Law No. 41 of 2022 for Non-Muslims): This framework is built upon the principle of strict absolute equality between spouses. There is no legal concept or cause of action for a "marriage in obedience" claim. Consequently, any divorce filing under the civil law bypasses fault-based concepts entirely and is granted unilaterally upon request.
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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