Reports in The National, a regional Middle East newspaper suggest that “sweeping changes” are coming to family law for expatriates and that “Islamic law, or sharia, would rarely be used when it comes to cases for non-citizens”.
It is reported, “A couple, of any religion, that chooses to divorce in the UAE will have their proceedings dictated by the country in which they are married”. So far so good.
However, Article 1 of the (UAE) Federal Law No 28 of 2005 for Personal Affairs already allows non-Muslims to apply the laws of their own country to divorce, with priority given to the law of the state of the husband at the time the marriage was contracted.
My understanding is that this article was primarily aimed at the possibility of applying the nuances of the different schools of Islamic jurisprudence, which made a good deal of sense. When it came to non-Muslim expatriates, anecdotally, there are few examples to be had of foreign law being applied.
Many years ago, I tried to assist a Dubai family lawyer apply the law of England and Wales in an upcoming divorce; there were a number of challenges. First, it is necessary to "Produce" (present) the relevant law, and then have it translated and authenticated. Common law is mostly unwritten. In England and Wales, the last major piece of statute influencing the division of matrimonial resources was in 1973, the year we entered the EU, since when a series of decisions by the courts have created a patchwork of interpretation of the written law.
The task of presenting the evolution of family law in England and Wales in a comprehensible way to an audience of Sharia trained judges from across the Middle East has to this day proved, I believe, impossible.
I have seen an attempt (that failed at the first hurdle) where the judge failed to accept the possibility that Scotland had a different law to England.
In the case that I was involved with, both client and lawyer threw in the towel well before court.
The proposed new law, on the face of the news article, adds a different layer of complexity.
Apparently, the law that might now be applied at the end of a marriage in the UAE is of the country where the marriage took place, which may have absolutely nothing to do with the laws of the country of the couple (a couple from Penrhiw-llan marrying in Positano now living on Palm Jumeirah).
Family law proceedings in the UAE are very different to those in England and Wales when it comes to the division of the resources of a marriage. Disclosure is less onerous, orders are never made in respect of assets (matrimonial or otherwise) that are located out of the UAE and there is no pension sharing, as we know it.
It is to be seen if the legislators have looked at the particular remedies of the host of countries that make up the resident population of the UAE and how equipped / trained the judiciary are for the prospect of such a wide application of different laws. The prospect of the application of foreign law will presumably not just be directed at the divorce process and the division of matrimonial resources. There is a real opportunity here of a “game changer” for the expatriate family with children.
At the moment it is impossible for a mother to ask a judge in the UAE for permission to leave the country permanently with her children where the father refuses to consent to the move. A father can prevent his children’s movement through a travel ban (a relatively simple administrative process). The result has frequently been mothers acting unilaterally and running, fearing that if they do not, they will be stranded in the UAE.
The UAE is not a signatory to the Hague Abduction Convention and so what would otherwise be an abduction with a clearer legal pathway, now becomes a broader assessment of what is in the children's interests. For the courts of many of jurisdictions, to which these mothers run when tackling a father’s application for his children’s return, the fact that the UAE courts have no “relocation” powers, is one of the primary reasons for not returning them.
The possibility of change to this scenario through the application of foreign law is, in my mind, the most significant step the UAE could take to assist expat families contemplating or going through marriage breakdown.
Of all the proposed changes announced, perhaps the most startling of all is the decriminalisation of unmarried couples living together. It is unclear however what the status will be of any child born into such a relationship because at the moment they have no recognition at all.