In the year that coercive and controlling behaviour became a new basis for criminal prosecutions in England and Wales, it was interesting to read the recent blog by Hassan Elhais “Can I divorce my husband because he beat me?”, in which he reports that a criminal conviction that constitutes harm can be used as a ground for divorce in the UAE.
This helpful advice concerning domestic abuse in the UAE and the remedies available did remind me of a Mail Online headline in 2010 - “Men ALLOWED to beat their wives and young children (as long as they do not leave any marks) rules UAE Court”.
The newspaper reported what was said to be the judgment of “one of the UAE’s most senior judges” who responded to the husband’s defence in criminal proceedings that under Sharia law “the husband had the right to do so (strike his wife) if he had first exhausted all other ways of resolving the dispute”.
The judge said that although the law does permit a husband to use “discipline”, “if a husband abuses this right to discipline, he cannot be exempted from punishment”. The judge went on, apparently, to explain that one way of deciding whether this limit had been breached was to look for physical traces of the beating.
There is, I understand, strong disagreement among Sharia experts as to whether the judge’s decision was correct. However, what happened in that court has parallels with the discretionary basis of decisions in the family courts of England and Wales in that the judge used his discretion when making a decision based on his interpretation of the law and the facts.
Few participants in family proceedings in England and Wales walk away happy, a position that is often said to reflect the perfect balanced judgment.
The problem with the discretionary approach is that it is inherently uncertain and means lawyers cannot necessarily predict outcomes in systems where one judge will make a different decision to another on similar facts and much might depend on which side of the bed s/he got out of that morning.
There is therefore a unique dilemma facing expats when deciding when and in which country to divorce as the outcomes can differ widely and be unpredictable. This requires comprehensive and experienced advice on the pros and cons of the approach adopted in multiple jurisdictions and the way in which each different court will apply their divorce laws to the facts of individual family circumstances and then enforce those decisions.