Case Summary: plaintiff filed this case against the defendant who is his ex-wife, seeking custody of his daughters aged 12 and 10, who were currently with their mother. The plaintiff states that he had converted to Islam a few years ago after which he received an explanation of the principles of the Islamic religion. As the defendant is of a different religion and beliefs, he is concerned that his daughters, who were at the age of imitation, will be influenced by their mother and led astray. He also feared that the defendant would leave the country with his daughters, without his knowledge.
Neither the defendant or her legal representatives attended the court sessions despite being duly notified.
First Instance Court (“CFI”) findings: Although the parties were of American and Australian nationality, as they did not request the application of the personal laws of their respective countries, the laws of UAE were applied to the case. The court stated that according to article 85 of the Civil Transactions Law, a court can rule lack of jurisdiction in matters placed before it. It also considered article 6 of the Federal Personal Status Law No. 28 of 2005 which stated that the family courts have jurisdiction over cases of personal status matters initiated against foreigners having no domicile, residence or workplace in the state if, among other things, the claimant is a citizen or a foreigner having a domicile, residence or workplace in the state and the respondent has no well-known domicile or residence abroad, or if the national law is to be applied in the state. Also, article 7 of the personal status Law states that when the state courts are the competent authority as per article 6, the court having the claimant’s domicile, residence or workplace within its precinct will be the competent authority, otherwise the court of the capital will be the competent authority to try the matter. Thus, jurisdiction in case of non-nationals depends on whether the claimant has residence, or place of work in the state, and the defendant has no known domicile or residence abroad or the national law applies. Furthermore, this jurisdiction must not be a temporary incidental matter at the time of filing the case.
Consequently, the court stated that the defendant did not have any known address in the UAE at the time of filing the case, and was domiciled in her home country, the United States of America. As the plaintiff had failed to provide any evidence to the contrary, the court ruled that it lacked the jurisdiction to hear the matter.
Court of Appeal findings: The plaintiff appealed the ruling issued by the Court of First Instance. The Court of Appeal stated that the trial court has the authority to gain an understanding of the facts of the case, evaluate the documents and evidence presented therein, drawing conclusions in conformity with the facts of the case and the rights and entitlements therein, without objection, as it bases its ruling on sufficient grounds supported by documents. Moreover, the court is not bound to separately answer every plea and defense raised by litigants and every document submitted, as long as the evidence that refutes such pleas or defenses is implied in the grounds of the judgment. As the plaintiff had failed to produce anything new before the court, and as the First Instance ruling had detailed all the factual, legitimate, and legal elements of the case, the court upheld the ruling of the lower court and dismissed the appeal filed by the plaintiff.
Court of Cassation findings: The plaintiff further appealed the judgement of the Court of Appeal before the Court of Cassation. The Court of Cassation stated that this case involved the matter of international jurisdiction stipulated in article 6 of the personal status law. As per this article, courts will have international jurisdiction in case where the foreign national has domicile in the state, if the respondent in the case has no known address of domicile or residence abroad, or if the national law is applicable to the parties. As it can be gathered that the parties do not hold citizenship, the national law is not applicable. Although the plaintiff has residence and place of work in the UAE, the defendant does not have domicile residence or place of work in the country, and she has a known address in her home country. The plaintiff had also failed to prove that the defendant had domicile, residence or place of work in the country, during the time of filing the case. These grounds are deemed reasonable/ justifiable grounds supported by documents that would duly lead to the conclusion reached by the appeal court. The appeal court has also provided reasons and evidence to refute the grounds raised by the plaintiff in the Cassation Appeal. As a result, the case was dismissed by the Court of Cassation.
In Conclusion, courts will have international jurisdiction in cases where the foreign national has domicile, residence or place of work in the state, only if the respondent in the case has no well-known address of domicile or residence abroad, or if the national law is applicable to the parties.
Cassation Appeal No. 5 of 2023, Personal Status Appeal
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.
Copyright © of this article is retained by the author and/or other copyright owners. We explicitly grant you permission to download a copy, without any alteration, of this article
for personal non-commercial research or study, without prior permission or any charge. This article can be utilized on your website or for marketing, however, we grant you permission
to host this article on your website and no other rights. This content should not be altered in any way or sold commercially in any format without prior permission of the copyright holder.
During reference of this article, full biographic details entailing the name of the author, his designation, the institute and the publishing date of the article shall be provided.
