Case Summary: The husband filed for a fault-based divorce from the wife on the grounds of cruelty, physical and mental abuse, and impossibility of maintaining marital relations. He stated that his wife of 4 years had been treating him with extreme cruelty and had harmed his reputation by filing false cases against him in their home country. She has also been rude to his mother. The husband also stated that the wife and her relatives had come to their marital house and physically assaulted him before expelling him from his house due to which he was now forced to live in a different house. The wife refutes all the claims of the husband, contending that it was the husband who left their jointly owned marital home to live with his mother. She states that she did not want a divorce and wanted to reconcile with the husband. The wife adds that their issues started when she lost her job and could not contribute to the expenses of the house, even physically assaulting her in the course of their disagreements. She also claims that the cases instituted in the Indian courts were regarding the money he took from her as dowry and requesting his recommitment to their marriage. She adds that she is currently engaged in a temporary job for three months. Both parties agreed that they had separated in marital bed 3 to 4 months before the husband left their marital house. The witnesses appearing on behalf of the husband indicated that the wife was extremely disrespectful towards the husband’s mother and stated that it was impossible to continue the marriage while the witnesses on behalf of the wife attributed the excessive drinking on the part of the husband to be the primary contributor towards their marital discord but implied that their marriage could continue. The wife requests the application of the personal laws of her home country on the current case.
First Instance Court findings: As the copy of the personal law presented to the court by the wife was not duly certified as required by law, the court rejected the wife’s request and applied the UAE laws to the case. Regarding the husband’s request for divorce, the court stated that as per article 117 of the UAE Federal Law No. 28 of 2005 concerning Personal Status, each spouse has the right to request a divorce if they are unable to continue their marriage. As the court had enough evidence that the wife had instituted false criminal cases against the husband, and as the witnesses had corroborated the fact that the wife was disrespectful towards the husband, the court agreed that there is enough harm to grant a divorce to the husband. Regarding the wife’s request, the court determined that although as per article 66 of the personal status law, it was the husband’s obligation to provide for maintenance for the wife covering her food, clothing, health treatment and servant, as the couple was non-Muslim abiding by the principles of equality between spouses, the husband’s obligation towards maintenance does not apply when the wife is working. Considering the facts of the case, the court ruled to charge the husband to pay maintenance to the wife during her period of unemployment after their marriage. Since both the spouses acknowledged that the wife was still living in the marital house, the court rejected the wife’s request for residence allowances. However, it charged the husband to pay utility bills of the house for the period when the wife was unemployed. The wife’s request for a domestic servant was rejected by the court as the wife had failed to prove that she had a domestic servant in her family’s house. The court also rejected the wife’s request to charge her husband to treat her well on the account that the dissolution of marital ties released the couple from their marital duties towards each other.
Court of Appeal findings: Both the husband and the wife appealed the decision of the court of first instance. The wife appealed the lower court’s decision to apply UAE laws to the case. This appeal was rejected by the appeal court stating that the wife had failed to adhere to the prescribed laws while presenting the personal laws of her country, due to which the lower court rightly applied the default UAE laws to the case. The Wife’s appeal to annul the divorce ruling was accepted by the appeal court. The appeal court stated that as per article 122 of the personal status law, fault-based divorce must be proven by lawful evidence and judicial rulings issued against one of the spouses, showing that it is impossible to continue marital relations. The court observed that the dispute between the couple was merely a familial disagreement and the husband’s witnesses only established that there was dispute between the wife and the husband’s mother. The court also annulled the lower court’s alimony ruling regarding the period when the alimony is to be provided. The appeal court ruled to charge the husband to provide alimony from the date the case was filed and upheld the lower court’s ruling in all other aspects.
Court of Cassation findings: The husband appealed the Appeal court’s decision to annul the divorce ruling issued by the first instance court. The husband claimed that as per article 7 of Federal Decree-Law No. 41 of 2022 on Civil Personal Status, for the execution of a divorce, it is sufficient if one of the spouses expresses their desire to discontinue their marriage without any justification to the request. The court rejected this contention stating that as per article 3 of the law, the new law is to be applied to cases that were filed after the law comes into force. The husband also listed out the type of harm that he had undergone in his marriage due to which he deserved to be granted a fault-based divorce. The court stated that it is the trial court’s discretion to determine whether harm has been inflicted on a party to qualify it for a fault-based divorce. As the reasoning of the trial court is based on valid laws and on reasonable grounds substantiated by the case documents, the cassation court chose to uphold the trial court’s decision. Regarding the husband’s contention concerning the maintenance to be provided for the wife, the court held that as per article 66, 67, and 73 of the Personal Status Law, a wife is entitled to alimony from her husband based on a valid marriage contract if she submits herself to him, even constructively. Alimony then becomes a debt in the husband’s obligation from the date of refusal to provide it, without the need for judicial or consensual agreement, and it does not lapse except by payment or remission. Even if the wife is employed and earns a stable or temporary monthly income, this does not preclude her entitlement to alimony as long as the conditions for the entitlement are met. The court thus ruled to dismiss the cassation filed by the husband.
In conclusion, to establish the reasoning for a fault-based divorce, it is important to show that harm was suffered by the spouse requesting the divorce. The determination of whether the actions of the other party constitute severe harm as required by articles 117 and 122 of the personal status law is decided as per the discretion of the trial court. As long as the ruling of the trial court is based on reasonable grounds, substantiated by case documents, the cassation court will not evaluate the matter.
Cassation Appeal No. 223 of 2023, Personal Status Appeal
Frequently Asked Questions
1. What legal requirements must be met to apply foreign national law in a UAE family court case?
First, the party (husband or wife) must formally request the court to apply the law of their home country at the first available opportunity. Courts will not apply foreign law automatically. The party must provide the court with the specific articles of the foreign family law he/she wishes to be applied. Second, the requested foreign law must be legally translated into Arabic and duly certified by the UAE embassy and Ministry of Foreign Affairs in that country. Even if all procedural steps are met, the UAE court may refuse to apply any provision of foreign law that contradicts the rules of sharia, public order or morality of the UAE. If the foreign law cannot be applied in the UAE, then UAE law will serve as the default.
2. Must the non-Muslim couples go to the Family Guidance Committee before they file the divorce case?
According to the Federal Decree-Law No. (41) of 2022 On the Civil Personal Status which governs the divorce of non-Muslim, divorce proceedings filed in accordance with the provisions of this Decree Law shall be excluded from being referred to Family Guidance Committees, and instead, shall be presented directly to the court.
3. Can the non-Muslim father request sole custody towards the children during the divorce case?
Yes, a non-Muslim father can request sole custody either during the divorce proceedings or after the divorce is finalized.
Under Federal Decree-Law No. (41) of 2022 on Civil Personal Status, the statutory default is that child custody is a joint and equal right of both the father and the mother after divorce. However, this default arrangement can be challenged and waived.
During the Divorce Case: A father seeking sole custody can file an application during the divorce proceedings to contest joint custody from the outset. He must provide evidence to the court demonstrating that joint custody would be detrimental to the child or that the mother is unfit.
After the Divorce Case: If joint custody was initially granted, either parent may subsequently petition the court to amend the arrangement and claim sole custody if circumstances change.
This is governed by Article 10 of the Decree-Law, which establishes joint custody as the baseline but gives the court ultimate oversight:
Article 10(4): "The court shall have a discretionary power to decide a particular course of action in the best interest of the child under custody, based on the request of either parent after divorce."
Ultimately, whether requested during or after the litigation, the court will exercise its discretionary power to award sole custody only if it is proven to be in the best interests of the child.
4. If a non-Muslim husband filed a fault-based divorce case before the new family law governing non-Muslims (Federal Decree-Law No. (41) of 2022 on the Civil Personal Status) came into effect, can he request to apply this law?
No. If a husband initiated a fault-based divorce case under the old legal framework and the court issued a judgment denying the divorce, he cannot request the Court of Cassation to retroactively apply the provisions of the new Civil Personal Status Law (Federal Decree-Law No. 41 of 2022). This is because Article 17 (the application and effective date clause) explicitly dictates that the law applies only to incidents and legal actions taking place after its effective date (which was February 1, 2023). UAE courts strictly enforce the principle of non-retroactivity; since a final judgment on the old case was already rendered by lower courts based on the laws in force at that time, the Court of Cassation will not overturn it using a newly enacted statutory framework.
5. Can disagreement between the couple be considered as harm, which is a ground accepted by the court to grant a fault-based divorce?
No, mere disagreement or ordinary marital friction between a couple does not constitute legal "harm" (Darar) sufficient to grant a fault-based divorce.
Under the UAE Personal Status Law framework, a fault-based divorce on the grounds of harm requires the seeking spouse to prove that the other party has committed a specific, severe wrong (such as physical or verbal abuse, desertion, or financial abandonment) that makes the continuation of the marital relationship objectively impossible.
Important Distinction for Non-Muslims: If the couple is non-Muslim and elects to proceed under the Civil Personal Status Law (Federal Decree-Law No. 41 of 2022), the concept of "proving harm" is entirely bypassed. Under the civil framework, either spouse can obtain a unilateral, no-fault divorce based simply on the breakdown of the marriage, without needing to substantiate any wrongdoing or disagreement before the court.
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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