1.1 What is the primary source of law in relation to the breakdown of marriage and the welfare of children within the jurisdiction?
Dubai is one 'Emirate' within the 'United Arab Emirates'. Seven Emirates make up the UAE being: Dubai; Sharjah, Abu Dhabi, Fujeira, Ras Al Khaimah, Um al Quwaim and Ajman. Each Emirate is governed individually.
The laws of the UAE are coded and judgments from the Court of Cassation in Abu Dhabi set precedents. These cases assist with the interpretation of the statutory provisions however, there are not a great number of family law precedents as these cases do not tend to reach the Court of Cessation.
The laws that are relevant to Family matters are the:
- Federal Law 11 of 1992 - concerning Civil Procedure matters (the 'Civil Procedure Law');
- The Law of Civil Transactions 5 of 1985; and
- The Federal Law 28 of 2005 - concerning Personal Status matters (the 'Personal Status Law'). The Personal Status Law was developed from traditional Sharia laws and principles, and has taken into account the changing needs of modern society.
It is possible for non-Muslim expatriates to ask for the laws of their home countries to be applied within the courts of the UAE. The Law of Civil Transactions 1985 determines the applicable laws for different types of cases.
The following articles are relevant to Family law matters:
Article 13: The law of the state in which the husband is a national at the time the marriage is contracted, shall apply to personal status and the division of property, resulting from the contracting of the marriage.
Article 16: substantive matters relating to guardianship, trusteeship, and maintenance or other systems, laid down for the protection of persons having no competence are governed by the law of the person requiring to be protected. (so the law of the nationality of the parties' child would apply to child maintenance)
Article 18: possession, ownership and rights over property shall be governed by the lex situs in the case of real property. (I.e. the law of the country in which the property is located could be applied).
However, in practice foreign laws are very rarely applied for the following reasons:
- The application of foreign laws is a time consuming and difficult procedure. It is necessary to have all the relevant laws of that country translated into Arabic and put before the court. The application of precedents and case law makes this an overwhelmingly onerous task.
- Foreign laws will not be applied if they are contrary to public order, morals or Islamic Shari'a (Article 27 Civil Procedure Law).
- Foreign laws will not be applied if their effect cannot be determined (Article 28 Civil Procedure Law). Therefore, if a Dubai judge cannot clearly interpret the foreign laws, local Dubai laws will be applied instead.
- Where the foreign law to be applied is the law of one parties' nationality, UAE law will instead be applied if that party has dual nationality or his nationality is unknown. (Article 24 Civil Procedure Law).
- Under the statutory provisions, each party may seek their own laws to be applied. However, practically the UAE courts will only apply foreign laws if both parties agree to such law being applied.
For the remainder of this chapter, it will be assumed that UAE laws are being applied, not foreign laws.
1.2 Which are the main statutes governing matrimonial law in the jurisdiction?
Federal Law 28 of 2005 concerning personal status matters (Personal Status Law)