Most people assume they must get a divorce in the country they live in or where they married. Sometimes when people have dual nationality, they assume that they can choose as they please. If a wrong decision is made, this could mean the difference between the process taking years rather than months and mean you are left counting the cost.
This presents the opportunity for something called “forum shopping”, which is a race to file for divorce first in the most advantageous jurisdiction to the weaker or stronger party financially. So, the spouses apply strategic choices to where they seek to divorce and the first to issue aim to secure their preferred jurisdiction to the exclusion of any other EU choice and even make it harder to bring a divorce in a non-EU state.
Once you have made your decision, you then have to deal with a whole range of other issues according to the law of the country you have chosen. Remember, you only get one chance when filing for divorce, so it’s important you make the right choices at the beginning.
The UAE courts operate Sharia law for Muslims, but also offer access to its courts for non-Muslim residents.
If you are living legitimately in the UAE and are resident then you are likely to be entitled to divorce there. Non-Muslims can use the Law of Personal Status. The local law remedies available are, however, limited; no spousal maintenance beyond 12 months of separation (does not to exceed 25% of the husband’s income), and no division of assets (pension, bonuses, property, savings etc) if they are not in joint names or a contribution (in money) can be proved.
If children are involved then they will be supported and there is the possibility of the mother receiving a modest carer’s allowance.
Not all expatriates are subject to Sharia law. The UAE Courts are prepared to have non-Muslim expatriates apply the law of their home countries. The principle is that then UAE courts apply the applicant’s “home” law. This is not straight forward and requires careful advice and guidance.
If the Laws are from different countries then the law of the husband’s country will prevail. However, examples of the UAE Courts fully applying English law are hard to find. They may use some of the laws but if they contradict or clash with Sharia law principles, the Judge is able to throw it out.
However, when it is not possible to use the foreign law, the UAE family code will apply. It is based on Sharia law but in child custody cases the Judges have a degree of discretion to take into account the best interests of the children. In financial cases also, there is effectively very little discretion. With Muslim expatriates, the UAE Family code only applies.
If you are faced with a divorce in the UAE, however, there are two fall back positions:-
The possibility for a claim to be made in the Courts of the UK after such a divorce, under Part III of the Matrimonial and Family Proceedings Act 1984 which allows the English Court to make provision where an inadequate provision has been made overseas.
This can be useful to prevent hardship and provide a returning spouse and children with a home as well as a method of dividing pensions located in the UK. Again, specific criteria has to be met for this application to be made.
In relation to children, an English Court can also make orders for the benefit of the children during their minority which can include the use of a home and a significantly more generous carer’s allowance for the mother. There is an issue, if there are no assets/resources in England and Wales or another “friendly jurisdiction” then the UAE Court will not assist in the enforcement of English Orders and these routes are not useful.
As in England, decisions made by local Courts are always made in the best interests of the children which usually means that minor children will live with their mother and older children get to choose. However , in the UAE, children stop being minors at an earlier age (approximately 11 boys and 13 girls) than in the UK . Women tend to be granted automatic custody of female children and temporary custody of male children only until maturity. When the children reach maturity custody will then revert to the father if he applies for it. Fathers’ views have a strong weight particularly if they are of Muslim religion and the mother is not. A mother may also lose custody if she remarries. It is possible for the parents to agree to ask a local Court to apply the law of their own country but again this have proved hard to apply.
For example, if the family are English one partner may say that they want English law to apply. However English law first looks at where the children are habitually resident. Since the answer is that they are habitually resident in the UAE, the English Courts are likely to adopt the default position that it is then for the UAE Courts to make the decision, unless the other partner also agrees to the English Courts having jurisdiction. However, the UAE is not party to the Hague Convention on the International Aspects of Child Abduction.
This can cause problems as to whether the children will be returned to the UAE or if the children are physically located in England at the point the application is made, even though they are not habitually resident, the English Courts will be able to take control of the proceedings. Again, this is complex and requires specialist advice.
Most British expatriate wives will needless to say always prefer UK law over UAE law as the division of assets (including pensions) are much more reasonable and rights to children. The right to start proceedings in England is governed by some fairly simple rules. Habitual residence is one, however English domicile is another. Most expatriate couples would probably be found to have retained English domicile, particularly living in the UAE where citizenship is unlikely. Moving around and no longer paying tax in the UK does not mean loss of domicile of origin.
Many divorce settlements discussions between lawyers in England and the UAE can take place in the UAE or in England and offer a smart way of avoiding the wrangling and cross jurisdictional Court struggles that often follow when complex international families when divorcing. This is something that we deal with very regularly.
The UAE is not a signatory to the international treaty, the Hague Convention on Child Abduction. This means that if a child is taken to the UAE by a parent without consent it may be hard, or impossible, to have them returned. The same position applies to children being taken from the UAE to England (perhaps by a mother returning to obtain jurisdiction for divorce). In theory international arrest warrants exist as a deterrent and possible means of achieving the children’s return. However, these also have repercussions in terms of the criminal record of the accused parent and the child’s ability to travel internationally. The unauthorised movement of children raises problems that obviously should be avoided.
Below is an article that I wrote for The National in Dubai about enforcing travel bans in Dubai Courts if there is a fear of a child being abducted within the UAE.
To find out where your marriage stands under English law or in relation to how we can help you in relation to your marriage and the rights you are entitled to whether your marriage was registered or not, please contact us for a free initial consultation on 0161 8175014 or leave your details and we will contact you when it suits you.
