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May 27, 2020|
The foregoing statement can be witnessed in different judgments issued by the courts of UAE in divorce cases of foreign residents filed before the courts of UAE, wherein one of such judgments will be discussed in this article by Family Lawyers of Dubai.
The Legal Structure
Marriage is a contract that legalizes the enjoyment between the husband and wife; its objective is to protect and form a steady family under the care of the husband and ensure the spouse the assumptions of affection and compassion as mentioned in Article 19 of the Law. Nevertheless, as mentioned above, the Family Law lays down certain prerequisites to prove the occurrence of any marriage solemnized within or outside the country. This is under Article 27 of the Law which primarily states that Marriage shall be officially recorded, but in consideration of a specific fact, it can be proved by other means admitted by the Law of Sharia.
The afore-mentioned statement was well explained by Dubai Personal Status Court under case number 1032/2017 wherein the plaintiff (husband) registered a divorce case against the defendant (wife) by submitting the Marriage Certificate attested by a notary public of New York as the marriage was consummated in the USA. Plaintiff confirmed that the marriage was made following American law and considering the defendant is a Christian, her guardian did not attend the marriage ceremony (as not required in American Law) and the dowry was never discussed. The plaintiff asserted that the defendant is not obedient and initiates fights on the grounds of different religions and thus requested the annulment of marriage.
The parties since failed to amicably resolve the dispute before Family Guidance Committee, the matter was registered before the Personal Status Court, wherein the Defendant submitted her defence stating that the Courts of UAE are incompetent to issue a judgment on the concerned case.
Upon receiving the memorandums submitted by both parties, the court issued a verdict based on several provisions which will be discussed in the following paragraphs. Primarily, the court established that both the parties are not citizens of the USA, thus, none of them requested to apply for the country of their origin and thus, following Article 2(1) of the Family Law, the case will be governed following the Family Law of UAE.
Secondly, about the defence submitted by the defendant (challenging the competency of UAE courts to issue a verdict on the said case) the court ruled that the statement of the defendant is invalid as per Article 5 of the Family Law which reads as follows:
The courts of the state are competent to look into the cases of personal status filed against citizens and expatriates who have the country of origin or address or place of work inside the country." Having said that, since at the time of registration of the case, both the parties were residents of UAE, thus, courts have full jurisdiction to try the matter. Furthermore, the court while confirming the validity of the marriage certificate relied on several provisions of the Family Law such as Article 4, 27(1) and 3 and Article 12(2) of the Civil Procedures Law. Additionally, the court confirmed that the prerequisites to determine the validity of the marriage referred mainly to the law of each party at the time of marriage and that means of documenting the marriage as one of the formal conditions of marriage, which falls in the scope of application of the country where the marriage has been concluded and that documenting the marriage is originally by an official document issued by the judge or priest appointed by the minister of justice.
In furtherance, it is valid and important to document the marriage as per Sharia principles in terms of witnessed by two men or one man and two women, where it is not feasible to document it by decisive oath or even by turning it away and to evaluate the existence of a certain fact in case of non-documentation of marriage is one of the topics exclusively determined by the court whenever its judgment was based on solid grounds with strong reasoning of documents, it is also established that validity of the marriage cannot be determined except after proving it under Sharia Law (referring to Personal Status Court of Appeal case number 65/2007).
Additionally, the court referred to Articles 38 and 39 of the Family Law stating that the guardian of an adult woman is responsible to conclude the marriage contract for her upon her acceptance and she shall sign the contract, and the contract shall be considered null and void if signed without a guardian. In this regard, as confirmed by the plaintiff that the father of the defendant did not attend the marriage and there was no discussion of dowry and the submitted marriage certificate does not indicate any offer and acceptance, guardian, dowry or witnesses, hence this marriage is missing its pillars and the court rules with the rejection of the case in the manner expressed in the verdict. The court relying on the foregoing principles rejected the case and obliged the plaintiff to pay relevant expenses and court fees.
In conclusion, I wish to update my readers that not all marriage certificates are valid in UAE Family Courts, even if they are completely attested by relevant embassies in UAE or other respective authorities in case one of the parties is Muslim and the marriage was supposed to be according to Islamic Principles. In such events, if your marriage is not according to Islamic standards and it was considered invalid, there might be some serious consequences on your divorce applications or custody and maintenance claims.
The Emirates of Abu Dhabi has issued a new law called the Abu Dhabi Law No. 14/2021 on Civil Marriage and Its Effects in the Emirate of Abu Dhabi and its amendments (Abu Dhabi Civil Personal Status Law) which mainly applies to non-Muslims based in Abu Dhabi. However, the UAE Personal Status Law continues to apply to Muslims in Abu Dhabi. The UAE has issued a Civil Personal Status Law for non-Muslims at the Federal Level (Federal Law 41 of 2022 on Civil Personal Status) which will be effective from February 2023. The New Federal Law comes after the effective application of a non-Muslim Personal Status Law existing in Abu Dhabi. This New Federal Law has introduced changes in personal status matters for non-Muslims in matters related to family guidance mediation, rights between the parties concerning testimony, inheritance, divorce, and custody. The New Federal Law has introduced civil marriage at a federal level and provided equal rights to parties in requesting the divorce. The New Federal Law covers matters related to alimony, custody, inheritance, and parentage.
Non-Muslims in the UAE may marry as per their rituals and request their embassy to attest their marriage document. If the religious marriage between non-Muslims was concluded outside the UAE, it should be attested by the UAE embassy in the country where the marriage was concluded. If civil marriage is concluded outside the UAE, it will be recognized in the UAE as long as it is not contrary to public order or Islamic Shari'a.
Non-Muslims may conclude their civil marriage in the UAE under Abu Dhabi Law No. 14/2021 if they are in Abu Dhabi or Federal Law 41 of 2022 on Civil Personal Status. As per the Federal Civil Personal Status Law, both husband and wife must have attained at least twenty-one (21) Gregorian years of age. Any official document issued by the nation to which each of them has nationality shall serve as evidence of age. Marriage may not be concluded with brothers, sons, grandchildren, paternal or maternal uncles or aunts, and any other cases specified by the executive regulations of this law. Both spouses must explicitly express their consent to the marriage. The spouses must sign the disclosure form. To know more information about this law, please feel free to click this link.
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