Background
Recent decisions in Abu Dhabi have sparked controversy regarding the application of its Civil Marriage Law, Law No. 14/2021, to foreign Muslims. In a decision from April 2024, the Abu Dhabi Supreme Court (ADSC) overturned a lower court ruling, stating that the law should not apply to parties who are Muslims. In contrast, the Abu Dhabi Civil Family Court (ADCFC) issued a judgment in May 2024, holding that the law can apply to Muslims from countries where Islamic Sharia is not the primary basis for matters relating to personal status.
These divergent rulings highlight the evolving nature of family law in the UAE and raise important questions about international jurisdiction in divorce cases. Although the latter ruling could still be appealed, both cases provide valuable insights into how civil law and Islamic jurisprudence intersect within the UAE legal system.
Case Overview
Facts of the Case
- This case pertains to a no-fault divorce and joint custody claim by X, a British national, against Y, an Australian national, under the Abu Dhabi Civil Marriage Law.
- The couple had married in Australia in 2019; their relationship continued to deteriorate.
- On March 19, 2024, X filed a case in court.
Y challenged the jurisdiction of the ADCFC by arguing on the following three grounds:
- Subject-matter jurisdiction: It was submitted by Y that the Civil Marriage Law did not apply as both parties were Muslims.
- Territorial jurisdiction (interstate jurisdiction): Y lived and worked in Dubai, not Abu Dhabi.
- International jurisdiction: There was a pre-nuptial agreement to confer the jurisdiction to the English courts to resolve marital disputes.
Y requested the proceedings to be dismissed or stayed on the basis that proceedings for divorce were pending in the English courts.
The Ruling
The ADCFC dismissed all arguments put forward by Y and held that it had jurisdiction to entertain the case. The rationale of the court is as follows:
- Application of the Civil Marriage Law: The ADCFC held that the Civil Marriage Law applies “even if one or both parties are Muslims” provided their countries of origin mainly do not apply Islamic Sharia for matters concerning personal status.
- Jurisdiction: The fact that X is resident in Abu Dhabi, established by a tenancy agreement, granted jurisdiction. Article 4 of the 2022 Procedural Regulation empowers the ADCFC to consider a case of this nature based on the residence of one party in Abu Dhabi.
- International Jurisdiction and Lis Pendens: The choice of court clause in the pre-nuptial agreement was held to be ineffective in UAE law; this is in terms of Article 23 of the 2022 Federal Act on Civil Procedure (FACP). The pending divorce case in England (lis pendens) was not taken into consideration since the UAE courts prefer their jurisdiction in such matters.
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Applicability of the Civil Marriage Law to Foreign Muslims
The ADCFC made a landmark decision in applying the country’s Civil Marriage Law to foreign Muslims. The court hereby ruled that one, or both of them may be Muslims, and their law shall apply so long as their country is not primarily applying Islamic Sharia in personal status matters. This hair-splitting position came at variance with that of the ADSC, which said the country’s Civil Marriage Law does not apply to foreign Muslims, no matter their origin.
The ADCFC’s stance suggests interpreting and applying the provisions of the Civil Marriage Law broadly in light of its purpose. Unless this is a binding precedent, which it is not, since there is no system of binding precedent in the UAE’s civil law system, there is no requirement for lower courts to follow Supreme Court decisions, again opening up room for divergent interpretations.
Jurisdiction of the Abu Dhabi Civil Family Court (ADCFC)
Leaving aside the argument that the court lacked subject-matter jurisdiction on the basis of the parties’ Muslim faith, Y had two jurisdictional arguments which are addressed here:
- One of inter-state jurisdiction, since Abu Dhabi and Dubai are independent states with their own judges and own courts, and
- The other of international jurisdiction, since the English courts were allegedly elected by the parties in their prenuptial agreement.
The ADCFC claimed jurisdiction on the basis of X’s residence in Abu Dhabi, which it held proved by the tenancy agreement. This might appear to be a straightforward application of Article 4 of the 2022 Procedural Regulation, taking the ADCFC’s jurisdiction to hear and determine matters relating to persons who are subject to the Civil Marriage Law because of being habitually resident in Abu Dhabi. However, forum shopping concerns may arise if the tenancy agreement was created solely to found jurisdiction.
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Concluding Remarks
The ADCFC judgment gives invaluable insight into the application of the Abu Dhabi Civil Marriage Law, with all issues related to jurisdictional challenges that are associated with the UAE legal system. While this judgment signifies a great predisposition by the court in interpreting and applying the law expansively, the potential threat of forum shopping and the possibility of appeal enunciate the requirement for careful legal analysis and consistency in applying the law.
How Marriage Lawyers at Dubai Court Marriage Can Assist You
The UAE’s marriage and divorce laws can be quite complex, especially when a foreign national is involved. Our lawyers in Dubai Court Marriage are well conversant with the Abu Dhabi Civil Marriage Law and its Procedural Regulation. Be it issues of jurisdiction, application of law, or representation in court processes, we are here to guide you through to the very end.
Do not hesitate to reach out, and let us explain how we can help you with your legal issues.
You may want to know: Five requirements for Civil Marriage in Dubai under New law for Non- Muslims Expats
Reference: https://conflictoflaws.net/2024/the-abu-dhabi-civil-family-court-on-the-law-on-civil-marriage-applicability-to-foreign-muslim-and-the-complex-issue-of-international-jurisdiction/
