The Abu Dhabi Civil Family Court on the Law on Civil Marriage – Applicability to Foreign Muslim and the Complex Issue of International Jurisdiction

I. Introduction

In a earlier submit, I reported and commented on a call rendered by the Abu Dhabi Supreme Courtroom (hereinafter “ADSC”) wherein the Courtroom addressed the problem of the applicability of the Abu Dhabi Civil Marriage Regulation (Regulation No. 14/2021 of seven November 2021 as subsequently amended) and its Procedural Regulation (Decision No. 8/2022 of 1 February 2022) to international Muslims. In that case (Enchantment No. 245/2024 of 29 April 2024), the ADSC overturned the decrease courts’ resolution, which had admitted jurisdiction in a divorce case and declared the dissolution of the wedding in software of the Civil Marriage Regulation and its Procedural Regulation. Based on the ADSC, the decrease courts erred of their resolution since “it was judicially established…that [the parties] have been Muslim”.

Quickly after, an analogous concern was addressed in a case introduced earlier than the Abu Dhabi Civil Household Courtroom (hereinafter “ADCFC”). Nevertheless, in its Judgment No. 86/2024 of 17 Might 2024, the ADCFC took the alternative place by contemplating that the Civil Marriage Regulation applies “even when one or each events are Muslims” so long as “the events belong to a rustic that doesn’t primarily apply Islamic Sharia in private standing”. Though the choice is rendered by a primary occasion courtroom and is more likely to be appealed to greater courts, and probably overturned, the details of the case and the ADCFC’s ruling present fascinating parts for additional authorized evaluation and debate. This case additionally presents a precious alternative to introduce some points of the UAE/Abu Dhabi authorized system of worldwide jurisdiction in divorce issues.   

II. Info

The case includes a no-divorce and joint custody declare introduced earlier than the ADCFC by X (husband, a British citizen) in opposition to Y (spouse, an Australian citizen) below the Abu Dhabi Civil Marriage Regulation. X and Y have been married in Australia in 2019. The motion was launched on 19 March 2024.

Earlier than the ADCFC, Y argued that the case ought to be dismissed as a result of a earlier judgment had been rendered on 28 December 2023 by the identical courtroom (ADCFC) on the identical matter between the identical events.

Y additionally contested the jurisdiction of the ADCFC on three grounds:

The ADCFC lacked territorial jurisdiction, as Y resides and works in Dubai, has no reference to Abu Dhabi and X offered a sham lease contract of an appartement situated in Abu Dhabi so as to set up the jurisdiction of Abu Dhabi courts. (In its judgment, the ADFCF refers back to the contract dated 7 December 2023).
The ADCFC lacked subject-matter jurisdiction, because the events are Muslims
He ADCFC lacked worldwide jurisdiction, because the events had agreed in a pre-nuptial settlement to confer jurisdiction to the English courts[1] over any dispute arising from the wedding.

Alternatively, Y requested the dismissal or the keep of the continuing on the bottom {that a} divorce case was pending earlier than the English courts.

III.  The Ruling

Primarily based on the next grounds, the ADCFC rejected all of the arguments raised by Y, assumed jurisdiction over the case, declared the dissolution of the wedding, and awarded joint custody to the mother and father:[2]

Relating to Y’s plea to dismiss the case on the bottom {that a} prior ruling of the ADCFC had been rendered on the matter, a overview of the ruling revealed that the case had been dismissed on of jurisdictional grounds, due to this fact, the ruling was procedural and didn’t have res judicata impact.

Relating to the challenges to the courtroom’s jurisdiction – whether or not subject material, territorial, or worldwide – [since] there is no such thing as a divorce judgment from X’s nation (the UK) and X has been resident in Abu Dhabi, as evidenced by the submitted lease contract which exhibits that X rented an appartement situated within the Emirate, Abu Dahbi courts have jurisdiction.[3] Accordingly, the dispute falls below the Abu Dhabi Regulation on Civil Marriage even when one or each events are Muslims, because the States to which the events belong don’t primarily apply Islamic Sharia in private standing issues in line with Article 5 of the 2022 Procedural Regulation (although X has insisted in his memorandums that he was not a Muslim.)

Moreover, relating to the request to remain the continuing till a call within the case pending earlier than the English courts is rendered, because the courtroom has decided that it has jurisdiction on the bottom that X’s residence in Abu Dhabi, the request ought to be rejected.

IV. Feedback

Two essential points need to be significantly highlighted right here. The primary considerations the applicability of the Civil Marriage Regulation and its Procedural Regulation. The second considerations the jurisdiction of the ADCFC.

1. The applicability of the Civil Marriage Regulation to international Muslims

The case commented on right here has been extensively hailed as “vital”, “landmark” and even “historic” judgment as a result of it confirmed the applicability of the Civil Marriage Regulation to disputes involving international Muslims.[4] Nevertheless, it is very important be aware that this isn’t the primary case wherein the ADCFC has dominated on this method. That is significantly the case within the courtroom’s judgment No. 267/2023 of 12 December 2023. The judgment was later confirmed by the Abu Dhabi Courtroom of Enchantment’s ruling No. 31/2024 of 29 January 2024 however subsequently overturned by the aforementioned ADSC’s resolution reported right here.[5] It’s value recalling that, on this explicit case, the ADSC clearly said that the Civil Marriage Regulation doesn’t apply to international Muslims regardless of their origins. Nevertheless, as instructed on this case’s be aware, there are critical doubts concerning the correctness of the Supreme Courtroom’s interpretation and software the Civil Marriage Regulation and its Procedural Regulation.

From this angle, by ruling because it did, the ADCFC gives the look that it maintains its place in direct opposition to the ADSC. Nevertheless, one mustn’t lose sight of the truth that Abu Dhabi (and the UAE usually) operates below a civil legislation system the place the doctrine of “precedents” is just not acknowledged.[6] Thus, the choice of the Supreme Courtroom can function persuasive authority that decrease courts might think about of their judgments, however it isn’t binding on subsequent related instances.[7] In any case, by affirming that Civil Marriage Regulation additionally applies even when one or each events are Muslims so long as they belong to a rustic whose private standing legislation is just not based totally on Islamic Sharia, the ADCFC has demonstrated its willingness to interpret and apply the Civil Marriage Regulation in a fashion per its supposed goal.[8]

Nonetheless, because the ADFCF’s resolution is just a first-instance judgment, it stays to be seen whether or not an enchantment will likely be lodged in opposition to it. If an enchantment is filed, and the case finds its technique to the Supreme Courtroom, will probably be, certainly, fascinating to see whether or not the ADSC will likely be keen to rethink its stance on this concern.

2. The jurisdiction of the ADCFC

i. The jurisdictional challenges. Earlier than the ADCFC, Y raised two jurisdictional challenges, apart from contesting the courtroom’s subject-matter jurisdiction on the bottom of the non-applicability of the Civil Marriage Regulation because of the events’ Muslim religion.

The primary problem pertained to what was mistakenly known as “territorial jurisdiction” (ikhtisas makani). In actual fact, the problem involved interstate jurisdiction, on condition that each Abu Dhabi and Dubai have their autonomous judicial techniques, impartial from one another and different courtroom techniques out there within the UAE federation.[9]

The second problem involved worldwide jurisdiction, and that by arguing that English courts, because the courtroom chosen by the events in any dispute arising from their marriage, have been competent.

ii. Guidelines of worldwide jurisdiction in divorce issues. The related guidelines which can be probably relevant in divorce instances are discovered is a number of legislative acts. These embrace, as detailed within the desk under:

(i) the 2022 Federal Act on Civil Process (FACP)

(ii) the 2005 Federal Act on Private Standing (FAPS) and

(iii) the 2021 Abu Dhabi Regulation on Civil Marriage

(iv) the 2022 Procedural Regulation

Because the desk exhibits, the possibly relevant provisions exhibit a excessive diploma of redundancy, complexity and occasional inconsistencies, making them tough to obviously articulate.

The 2022 FACP[10]

The 2005 FAPS
The 2021 Civil Marriage Regulation

The 2022 Procedural Regulation

Common guidelines

Article 19

Article 5
Article 17bis provisio, first sentence

Article 4 para. 1[11]

Disputes aside from in rem rights over immovable situated overseas

The defendant’s UAE nationality

Disputes relating to private standing issues:

The defendant’s UAE nationality

Disputes over private standing matter of individuals lined by the Civil Marriage Regulation

The defendant’s UAE nationality

Disputes regarding the private standing of the individuals lined by the Civil Marriage Regulation

(with out indicating the procedural standing of the events)

(Nationality is just not explicitly talked about however implied)

Domicile or residence within the UAE of the international defendant

Domicile, residence, or place of business within the UAE of the international defendant

Domicile, residence, or place of business in Abu Dhabi of the international defendant

Domicile, residence, present or former place of business in Abu Dhabi

Property (property) object of the dispute is situated within the UAE

Particular guidelines

Article 20

Article 6

Article 17bis provisio, in nice

Article 4 para. 2

Actions introduced in opposition to international defendants who would not have domicile or residence within the UAE

Actions relating to private standing matter introduced in opposition to international defendants who would not have domicile, residence or place of business within the UAE
Actions relating to private standing matter (with out specification) introduced in opposition to international defendants who would not have domicile, residence or place of business within the UAE

Actions (with out specification) introduced in opposition to international defendants who would not have domicile, residence of place of business within the Abu Dhabi or would not have a recognized domicile or residence overseas

Article 20(4)

(class not specified)

When the motion is introduced by a spouse having domicile within the UAE in opposition to her husband who used to have a domicile therein
No equal provision
No equal provision
Article 4 para. 2 (5)

(class not specified)

When the spouse is the plaintiff and has domicile, place of business or residence in Abu Dhabi

(however with out specifying that it’s introduced in opposition to her husband)

No equal provision

Article 6 (2)

Actions regarding decision, annulment of marriage, talaq-divorce[12] or tatliq[13]–divorce

If the motion is introduced by a spouse who’s a UAE nationwide, or who beforehand held UAE nationality, however misplaced it,

–> when the spouse has domicile or residence within the UAE

Article 17bis (2)

Actions regarding decision, annulment of marriage or divorce

If the motion is introduced by a spouse who’s a UAE nationwide, or who beforehand held UAE nationality, however misplaced it,

–> when the spouse has domicile or residence in Abu Dhabi

Article 4 para. 2 (2)

Actions regarding civil divorce and its penalties

When any of the spouses has residence, place of business or domicile in Abu Dhabi

If the motion is introduced by a (international) spouse who has a domicile or residence within the UAE and the motion is introduced in opposition to husband who had domicile, residence or place of business within the UAE,

–> when:

·   The husband abandons his spouse and establishes his domicile, residence and place of business overseas

·   The husband is deported from the UAE

Article 20 (6)

Actions relating to private standing

When the plaintiff is a UAE nationwide or a foreigner who has domicile within the UAE:

· If the defendant doesn’t have a recognized domicile overseas or,

· When UAE legislation is the relevant legislation to the dispute

Article 6 (5)

Actions relating private standing

When the plaintiff is a UAE nationwide or a foreigner who has domicile, residence or place of business within the UAE:

·   If the defendant doesn’t have a recognized domicile or residence overseas, or

·    When UAE legislation is the relevant legislation to the dispute

Article 17bis (4)

Actions regarding one the private standing issues ruled by the [Civil Marriage] Regulation

When the plaintiff is a UAE nationwide or a foreigner who has domicile, residence or place of business in Abu Dhabi, if:

· The defendant doesn’t have a recognized domicile or residence overseas

Article 4 para. 2 (7)

(no reference to the class of the dispute)

When the plaintiff has domicile, residence or place of business in Abu Dhabi:

·  If the defendant doesn’t have a recognized domicile overseas, or

·  When UAE legislation is the relevant legislation to the dispute

iii. The plaintiff’s residence as floor of worldwide jurisdiction. In its judgment, the ADCFC has, apparently, addressed the three challenges above raised by Y as in the event that they have been of the identical nature. The courtroom justified its jurisdiction (territorial/interstate, subject-matter and worldwide) based mostly on the truth that X (the plaintiff) had a spot of residence in Abu Dhabi on the premise of a replica of a lease contract of an appartement situated in Abu Dhabi that X submitted to the courtroom.

The authorized foundation for asserting jurisdiction on the residence of the plaintiff in Abu Dhabi is discovered specifically in Article 4 of the 2022 Procedural Regulation. Two essential remarks will be made right here.

a) First, one of many exceptional points of Article 4 of the 2022 Procedural Regulation is that it stands distinct from related provisions present in different federal and native rules. Certainly, compared with the opposite relevant guidelines, Article 4 para. 1 of the Procedural Regulation grants jurisdiction to the ADFCF in instances involving individuals lined by the Civil Marriage Regulation merely on the premise of their residence, and even their present or a former place of business in Abu Dhabi, no matter their procedural standing (i.e. plaintiffs or defendants). Paragraph 2 dealing particularly with divorce motion, permits jurisdiction to be based mostly on the residence of one of many spouses in Abu Dhabi even when the opposite partner – the international defendant – has no domicile, residence or place of business in Abu Dhabi (or doesn’t have a recognized domicile or residence overseas).

b) Second, the case mentioned right here exhibits that the jurisdiction of the ADCFC was based mostly on the plaintiff’s easy residence in Abu Dhabi with out another further specs (e.g. everlasting residence, recurring residence, major residence, secondary residence and so on.). Based on the ADCFC’s judgment, residence was established on the premise of a lease contract displaying handle in Abu Dhabi, which was concluded barely over three months earlier than the motion is filed with the ADCFC. This undoubtedly raises considerations concerning the danger of discussion board procuring. That is extra so if Y’s arguments look like true that the lease contract was a sham entered into solely to govern the jurisdiction of the ADFCF. The truth that the ADCFC had in a previous case rejected the motion between the identical events on jurisdictional grounds, solely 18 days earlier than the X rented his appartement in Abu Dhabi, provides to the suspicion.

V. Concluding Remarks:

The ADCFC’s judgment presents different fascinating points. These embrace the truth that Y: (i) invoked a selection of courtroom settlement in favor of English courts; and (ii) raised the problem of lis pendens based mostly on the pending divorce continuing earlier than English courts.

Relating to (i), it’s typically accepted within the UAE that selection of courtroom settlement usually, together with in civil and industrial issues are null and void. On this respect, case legislation, based mostly on express provision within the 2022 FACP (Article 23), is quite constant.[14]

Relating to (ii), UAE courts have typically refused to take into consideration lis pendens contemplating their jurisdiction as a matter of public coverage, that if established, can’t be declined on the bottom that the identical case is pending earlier than a international courtroom (see, e.g., UAE Federal Supreme Courtroom, Enchantment No. 183/21 of 18 March 2001).

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[1] The judgment, in its each English and Arabic variations, used the phrases “British courts (al-mahakim al-britaniyya). Though it isn’t technically incorrect to consult with “British courts” in a broad and casual sense, it’s extra correct to consult with the particular courts inside the varied authorized techniques of the UK. Every system – English and Welsh legislation, Scottish legislation, and Northern Irish legislation – operates independently with its personal courts. Because of this, it appears extra acceptable right here to consult with “English courts” as a substitute, as it’s most certainly that these are the courts agreed upon by the events.

[2] Though the judgment was rendered in each Arabic and English, the English model of the textual content was not relied upon resulting from its inadequate high quality. That is merely an intensive abstract of the choice and never a full translation.

[3] The choice refers right here solely to territorial jurisdiction (al-ikhtisas al-makani), nonetheless the overall context of the judgment point out that the courtroom was additionally referring to subject material and worldwide jurisdictions.

[4] This was made on completely different on-line platforms which shared details about this case.

[5] The reference of the ADCFC’s judgment and the Courtroom of Enchantment’s ruling are talked about within the ADSC’s resolution which offers a short abstract of each instances.

[6] Apart from the widespread legislation enclaves of Dubai Worldwide Monetary Middle (DIFC) and Abu Dhabi World Market (ADGM).

[7] Cf. on the authorized system of the UAE usually, Essam Al Tamimi, Sensible Information to Litigation and Arbitration within the United Arab Emirates (Kluwer Regulation Worldwide, 2002) 5, 15.

[8] See Civil Marriage Regulation and Its Results within the Emirate of Abu Dhabi (Q & A) (Publication of Abu Dhabi Judicial Division, 2023).

[9] For an outline, see the data offered by the Authorities Portal right here.

[10] It ought to be famous that, though the FACP, which was initially enacted in 1992 (Federal Regulation No. 11/1992), was changed by a brand new Act of 2022 (2022 Federal Act on Civil Process), guidelines of worldwide jurisdiction have remained untouched. This missed alternative may have been used to deliver some order to the regulation of worldwide jurisdiction in household legislation issues.

[11] It ought to be famous that though Article 4 is titled “Territorial Jurisdiction of the Courtroom”, it really offers with worldwide jurisdiction, as the foundations included therein considerations instances introduced in opposition to a international who has no domicile, residence or place of business in Abu Dhabi or has no recognized domicile or residence overseas.

[12] Talaq right here refers back to the dissolution of marriage by the unilateral declaration of will by the husband.

[13] Tatliq refers to judicial divorce (often requested by the spouse) based mostly on the admitted grounds of divorce.

[14] Cf. Béligh Elbalti, “Perspective of Arab Nations,” in M. Weller et al. (eds.), The 2019 HCCH Judgments Conference – Cornerstones, Prospects, Outlook (Hart, 2023), p. 188. On the validity of selection of courtroom agreements in Bahrain, see my feedback right here.