Civil Personal Status Law Litigation in the UAE – Between Lofty Ideals and Sour Realities – Conflict of Laws

I. Introduction

It’s not unusual for students to debate whether or not non-public worldwide legislation is required as a definite self-discipline, and whether or not it’s really indispensable. In spite of everything, may one not save the trouble and complexity of making use of international legislation by merely treating all instances as purely home? From a theoretical standpoint, the reply is sure, since no State is below an inherent obligation to use international legislation. But, such an strategy entails critical shortcomings, significantly on the subject of respecting vested or acquired rights, assembly the reliable expectations of the events, and fostering cross-border commerce. It follows that the prices of refusing to acknowledge and apply international legislation are far larger than the difficulties related to sustaining a system of personal worldwide legislation. It’s due to this fact unsurprising that non-public worldwide legislation has established itself as a typical language for managing the authorized range inherent in transnational relations.

Nonetheless, non-public worldwide legislation shouldn’t be uniform throughout jurisdictions. In some States, its operation could also be severely constrained by the temptation to deal with instances involving international components as purely home. The scenario turns into much more delicate when such an strategy shouldn’t be merely a matter of judicial observe however is elevated to specific State coverage. That is exactly the problem raised by the UAE’s civil private standing legislations and associated courtroom observe, the place the very raison d’être of the brand new system seems to be the avoidance of the making use of international legislation. Certainly, for the reason that utility of international legislation “in observe … might be expensive, time consuming and sophisticated”, the lawmakers selected to (quasi) substitute it with a brand new system of civil private standing, described as “a greater cultural match for the expatriate group, significantly those that are non-Muslim.” (Abu Dhabi Judicial Division, Civil Marriage Legislation and Its Impact within the Emirate of Abu Dhabi (Q & A), 1st ed. 2023, p. 4).

This raises vital questions in regards to the stability between the “lofty beliefs” that impressed the introduction of the civil private standing legislations and the “bitter realities” of reliable expectations being missed, or, at occasions, totally disregarded.

II. Lofty Beliefs …

In what can certainly be thought of an iconoclastic initiative within the area, the Emirate of Abu Dhabi launched in 2021 a brand new system regulating civil marriage and its results (“2021 ADCML”) in parallel to the prevailing system of non-public standing based mostly on and influenced by Islamic guidelines and rules (the 2024 Federal Decree Legislation No 41 on Private Standing (“2024 PSL”), which changed the 2005 Federal Act on Private Standing as subsequently amended). The latter constitutes the droit commun (lex generalis), codifying numerous features of Islamic household legislation, whereas the previous operated as a particular legislation (lex specialis) totally grounded in secular, non-religious values, most notably equality and non-discrimination between the events no matter gender, nationality, or faith; not less than insofar as events are non-Muslims, or if international Muslims, are nationals of nations that don’t primarily apply Islamic sharia in issues of non-public standing (Article 5 of the 2022 Procedural regulation in regards to the Marriage and Civil Divorce Procedures within the Emirate of Abu Dhabi). The system was later prolonged to your complete federation by the adoption in 2022 of Federal Decree-Legislation No. 41 on Civil Private Standing) (“2022 CPSL”), with the notable distinction that the 2022 CPSL is strictly restricted to non-Muslims, whether or not UEA residents or foreigners (Article 1 of the 2022 CPSL; for a comparability between the 2 legislations, see my feedback right here).

The newly launched system has been praised as one which “acknowledges the complexities of [the UAE’s] international inhabitants”, gives “ a complete authorized framework addressing household legislation issues by a lens of inclusivity and equality”, and “[w]hile sustaining respect for cultural sensitivities”, “embrace[s] rules lengthy related to worldwide human rights and progressive household legislation: gender and parental equality, the imposition of larger monetary consequence and obligation in divorce and the prioritisation of youngsters’s welfare” (Byron James, United Arab Emirates: Household Legislation).

Certainly, as explicitly said in Article 2 of the 2021 ADCML, the system goals to “present a versatile and elaborate judicial mechanism for resolving household disputes” that’s “in keeping with worldwide finest practices,” and which ensures litigants “to be topic to an internationally recognised legislation that’s near them by way of tradition, customs and language.” The legislation additionally seeks to “consolidate the Emirate’s place and international competitiveness as one of the crucial engaging locations for human expertise and expertise.” These beliefs are mirrored, inter alia, in article 16 of the 2021 ADCML, echoed by Article 4 of the 2022 CPSL, regarding “equality between women and men as to rights and duties” in issues of testimony proof, inheritance, proper to request (unilateral) no-fault divorce and joint custody.

In a nutshell, the newly adopted legislations, that are “particularly designed to help the expatriate group”, try to supply “vacationers and residents” a “easy”, “efficient” “fashionable and versatile judicial mechanism” regulating their household relationships within the UAE “in accordance with civil rules versus spiritual rules” and “defend the rights of all people by offering household legislation rules which can be in keeping with finest worldwide practices in addition to an accessible and easy judicial course of” (Abu Dhabi Judicial Division, Civil Marriage Legislation and Its Impact within the Emirate of Abu Dhabi (Q & A), 1st ed. 2023, pp. 3, 5).

III. … Bitter Realities

1) Relating to the avoidance of making use of international legislation

As I famous in earlier posts (see right here and right here), doubts stay as as to if relying nearly totally on a substantive legislation strategy that’s based mostly on the direct utility of the civil private standing legislations in disputes involving international components can really obtain the goals of the newly launched household legislation system.

In observe, this strategy dangers being disruptive, undermining the beliefs of personal worldwide legislation, particularly decisional concord and respect for the events’ reliable expectations, no matter how well-crafted the relevant substantive legislation could also be. Beneath the brand new framework, it’s typically sufficient for judges to imagine jurisdiction on tenuous grounds (see my feedback right here) for the civil private standing legislations to be utilized nearly routinely. It makes no distinction whether or not, below the events’ lex patriae or the legislation usually relevant based on UAE alternative of legislation guidelines (the lex loci celebrationis based on article 13 of the 1985 Federal Act on Civil Transactions), divorce shouldn’t be permitted (as within the Philippines or sure Christian communities within the Center East), or whether or not divorce wouldn’t be acknowledged until the events’ private legislation had been utilized (as in India).

It’s true that below the federal legislation (although not in Abu Dhabi, because the wording of the legislation suggests), both get together could request the applying of their very own legislation (Article 1 of the 2022 CPSL, on this provision see my feedback right here). In observe, nevertheless, this mechanism has hardly ever proved efficient, as courts not solely deal with international legislation as a matter of truth whose content material have to be established by the get together invoking it, but additionally impose onerous necessities, rendering the applying of international legislation nearly illusory (see my feedback right here).

2) Relating to the subsidiary utility of the overall legislation based mostly on Islamic Sharia

The lofty beliefs of the newly launched civil private standing legislations additionally fade when the authorized challenge to be addressed shouldn’t be coated by them. In such instances, the matter has  to be ruled by “the legal guidelines and laws in power within the State” (Article 15 of the 2022 CPSL). In different phrases, the authorized challenge falls again on the overall legislation of non-public standing (the 2024 PSL), which relies – as defined above – on Islamic guidelines and rules. This creates a particularly intricate scenario: whereas the very function of the civil private standing legislation is to forestall non-Muslims from being subjected to the native Sharia-based laws, and as a substitute to supply them with a “an internationally recognised legislation that’s near them by way of tradition, customs and language” (Article 2 of the 2021 ADCML), sure issues nonetheless stay ruled by the native laws in its subsidiary utility.

The query of is guardianship (wilaya) gives a quintessential instance. The civil private standing laws regulates solely custody (hadhana) however says nothing about guardianship (wilaya). Within the absence of related guidelines, UAE judges flip to the overall private standing legislation (the 2024 PSL) to fill the hole. The issue, nevertheless, is that below this legislation – which displays Islamic legislation rules – guardianship (wilaya) is principally the daddy’s prerogative. Consequently, the mixed utility of the civil private standing legislation and the overall private standing legislation typically leads UAE judges to grant joint custody (hadhana mushtarika) to each dad and mom below the civil private standing legal guidelines, whereas conferring sole guardianship (wilaya) over the individual and property of the kid to the daddy in utility of the overall private standing legislation.

Once more, these provisions apply routinely, no matter the events’ lex patriae or the legislation usually relevant based on UAE choice-of-law guidelines.

IV. Reactions Overseas

The expertise of many litigants, primarily wives, with civil private standing litigation within the UAE has left them with bitter recollections, because the lofty beliefs of the newly adopted legislations didn’t meet their reliable expectations. That is significantly true when their efforts to invoke and apply their nationwide legislation, permitted in precept below Article 1 of the 2022 CPSL, proved futile for the explanations talked about above (III(1)). Many have shared their tales on social media, together with devoted Fb accounts. Just lately, native media comparable to newspaper articles or radio podcasts have begun to make clear the observe of civil private standing litigation within the UAE, drawing consideration to the unfavorable features of litigating private standing disputes within the UAE. As an example, a current article printed within the French newspaper Le Parisien, titled “ Dubaï, nouvel eldorado des divorces specific (Dubai, the brand new haven for first-track divorces)” describes the experiences and hardships of a number of girls who went by such proceedings. Comparable experiences have additionally been broadcasted on radio packages in France and Switzerland. Extra importantly, the phenomenon dangers taking a political flip, because the query of the applying of civil private standing legislation and the safety of the rights of French residents within the UAE has been formally delivered to the eye of the French authorities by a parliamentary query addressed to the Authorities by a member of the Senate, regarding worldwide divorce proceedings within the UAE involving French {couples}.

Final however not least, reactions from some European courts weren’t lengthy in coming: they’ve refused to acknowledge divorces issued within the UAE below the civil private standing laws on the grounds of procedural irregularities (see Alejandra Esmoris, Recognition of Abu Dhabi divorce ruling in Switzerland: Case Legislation Evaluation). Comparable reactions are more likely to multiply as extra events voice dissatisfaction with the system, significantly when its operation fails to satisfy the procedural ensures and substantive safeguards anticipated below the requirements of their private (European) legislation. As an example, the Le Parisien article talked about above, refers to petition filed in France by a French lawyer to bar the popularity of a Dubai courtroom’s divorce determination rendered in utility of the 2022 CPSL. This pattern could sign the start of broader scrutiny, and maybe resistance, to the popularity of judgments rendered below the UAE’s civil private standing framework.

V. Method ahead

A number of measures are wanted to enhance the present scenario, an important of that are a reconsideration of the position that non-public worldwide legislation can play and the facilitation of the applying of international legislation.

As well as, different procedural features require consideration. These embody the overly broad grounds for taking worldwide jurisdiction, the entire disregard of parallel proceedings (see instance, Abu Dhabi Civil Household Courtroom, Judgment No. 86/2024 of 17 Might 2024), the refusal to acknowledge international judgments and decrees until they’re first declared enforceable (see my remark right here), and the observe of indiscriminately serving notifications through SMS in Arabic with out English translation. The best way instances are performed on-line as reported within the abovementioned Le Parisien article (which described a celebration being represented by her lawyer whereas seated in her automotive along with her seatbelt on, throughout a trial performed by a choose who had not turned on his digital camera) additionally raises considerations. Until such points are addressed, judgments rendered below the civil private standing legislations will proceed to face denial of recognition and enforcement overseas (see Esmoris, op. cit.).