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Am I Married – Am I Single?
Recognition of Foreign Marriages by Foreign Courts and Impacts of Diverging Jurisdictions Regarding Divorces

Elena Schildgen

Author: Elena Schildgen
Senior Partner Lawyer.

Guiding Principle
As in former times it was almost guaranteed, that a marriage will be divorced when the husband filed the motion for divorce, new trends can be noticed now. Just recently, the competent Dubai Court decided to dismiss a case of divorce as in its opinion the marriage was not concluded in compliance with the rules of the Sharia. Furthermore, in the courts opinion the reasons the husband explained for the dissension of the spouses were not comprehensible enough and not properly proven.

A. Facts

In the aforementioned case, the couple, a German woman and an Indian Muslim man, got married in NYC, USA. They were both residents of Dubai, UAE, as the husband filed the motion for divorce. As the couple spend most of their time together in Germany and the husband had a residency visa there for several years the wife could not understand how it was possible to commence the court proceedings in Dubai

B. Applicable Law

The UAE based Law of Personal Status No. 28/2005 covers marriage, divorce and succession. Article 1 of this law defines the factual and personal scope of application. Legal effect of this regulation is that it opens the possibility for expatriates residing in the UAE to get divorced by a UAE court.

The majority of the expatriate couples living in the UAE were married abroad, most commonly in their home countries or in the home country of one of the spouses. For the acceptance of a marriage concluded outside the UAE, an officially legalized engrossment of the original marriage certificate is sufficient, as something like a public marriage register does not exist. This double strand of a foreign nationality and a UAE residency opens the possibility for a spouse that wishes to be divorced to choose whether this should happen in the UAE or in his/her home country or possibly, in the country where the couple was married, if it may differ from the home country.

C. Competent Court

The wife argued in front of the court, that her husband only filed the motion of divorce in Dubai, as he was aware that the divorce consequences are much milder in monetary terms than in Germany. If they were divorced there, an equal distribution of surplus would be executed between the assets of the spouses after a period of at least one-year separation. As there is no law in the UAE regarding the allocation of assets, the judges uphold the principle that each party retains the assets that were held by each spouse before the marriage.

Departing from other legal systems it is not mandatory for a divorce in the UAE that the spouses already live in separation for a distinguished period. When the file for separation is opened at court a special hearing is scheduled (Article 98 Law of Personal Status) where it will be discussed if it might be possible for the spouses to continue their marriage. This hearing is on one hand the possibility for the spouses to reconsider the decision of a divorce; on the other hand, in case both of the parties agree to the divorce, an amicable settlement can be reached between the spouses without any legal proceedings. Overall, the whole process of a divorce is far less time consuming than in common European legal systems.

Nevertheless, the woman pleaded that this case should not be decided by the competent Court of Dubai as both parties spent most of the time in Germany, but without success. As the parties both fall into the factual and personal scope of application of the Law of Personal Status, the Dubai Court was competent to decide in this case. Once a file is opened at the Dubai Court, it is more than likely that the court will make a decision, whether in favour for or against the claiming party. Even if another jurisdiction might exist, the Dubai Courts tend to decide the case and not dismiss it, even when one of the parties pleads missing competence or jurisdiction in this case. Legal consequence of the acceptance by the court and opening of the divorce case is “pendency” for the divorce case what makes it impossible to file a motion of getting divorced anywhere else although another jurisdiction might exist.

D. Decision of the UAE court

In his decision, the judge stated that the case had to be dismissed, as the matrimony did not fulfil the requirements of the Sharia. The court explained that it is empowered to review the circumstances of a marriage if it might have doubts about its correctness regarding the Sharia. The husband stated that he is a Muslim what led to the examination of the marriage and how it was concluded in New York. In the judge’s opinion, the couple was married without the required offer and acceptance of the marriage through a custodian of the wife, the required amount of witnesses was missing, and no dowry was negotiated between the spouses. The case was dismissed and as a legal consequence, the couple is still considered married everywhere except in the UAE.

As usually marriages from aboard are valid in the UAE and divorceable, the judge did not accept the way the couple was married in New York. Although all the usually sufficient documents etc. were present (an original certificate of marriage legalized before the Ministry of Foreign Affairs, translated into Arabic and then again attested by the Ministry of Justice) the case was dismissed. None of the parties ever had any doubts about the validity of their marriage nor did anyone of them plead the invalidity in front of the court. However, as marriages are part of the Personal Status Law in the UAE and so part of the ordre public judges are entitled within the scope of their responsibilities to explore the circumstances of the case, similar to a principle of ex proprio motu investigation. Ex proprio muto means acts of the court that are performed by its own initiative or own accord without any application of the parties. In this scope, it was possible for the judge to review the circumstances of the marriage although the parties had never disputed them.

Further the judge also explained that the reason for the discord of the spouses were not proven enough and that the simple claim the wife would not behave adequate wasn’t enough for a divorce.

E. Conclusion

The case’s dismissal now opens the possibility for both of the spouses to file a new motion of divorce but this time not in Dubai. Possible locations for a new trial would be on the one hand Germany, as the wife holds a German passport and the German citizenship and on the other hand, India, as the husband is of Indian nationality.

A possibility of getting divorced in Dubai also exists, but only within the constellation of an amicable agreement between the spouses. As already mentioned above when a file for separation is opened at court a special hearing is scheduled (Article 98 Law of Personal Status) where is discussed if it might be possible for the spouses to continue their marriage. If the spouses would open a new file at the court regarding their marriage and agree in this early hearing that both do not want to continue the marriage the judge can divorce the couple without any further judicial proceedings. In this case, it would also be possible to draft an agreement regarding the separation of assets and goods between the parties. It should be especially noted, that the agreement does not mandatory have to correspond with the regulations of the Sharia, that means that it is completely up to the parties how this agreement should be formulated and what obligations or duties for each party should arise.

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