Family Law & Consequence in the UAE

We have worked on several family matters in the UAE, most involving other EU countries. Certainly countries will take foreign Court orders into account in their decision making, though this is a complex area of law. The UAE Courts will not recognise Family Court Orders from other jurisdictions and remain autonomous on such matters. For some clients, this has worked in their favour and for others, it has unfairly prohibited them from access to their children.

Where children are involved, it is very important that jurisdiction is taken into account in the event of a divorce. Countless parents have been caught up in Family disputes in the UAE where the results and orders can be quite different to Europe, causing considerable heartache for those involved.

One particular issue that we have seen is a father using some failings in the legal system to open cases against the mother in order to achieve his desired family court result.

We received a letter from a European father today (below) who has tried to seek remedy in the EU Courts, to no avail.

"Mr AA, a EU citizen, was working in UAE as a University Professor. In April-May 2009 he filed in the courts of his native Member State a petition for a divorce by the wife and requested the exclusive custody rights for his two sons.

Shortly after, his wife made parallel applications in the courts in her Member State, B. A month later and without withdrawing her applications filed in her Member State, his wife filed another one in the UAE courts. Mr AA despite his efforts to explain to the court in the UAE that this case was a EU case (conflict of laws rules) and following specific EU conflict of laws Regulation (EC) sole jurisdiction (lex forum) on this EU cross-border family law dispute was of the courts in Member State A, the courts in UAE have exercised UAE jurisdiction issuing a judgment on the divorce and the custody of the children, in breach of EU cross-border family law jurisdiction, see below. This breach of public international law on jurisdiction by a UAE courts has a very serious implication between inter-government EU member states, EC Council, EC Commission and UAE.

During the summer and while the children were staying in the father’s home, a court issued protective measures under article 20 of the Regulation Brussels II prohibiting the children from leaving that Member State. Once his wife was informed about this she managed to obtain an order from a UAE court asking the father to bring the children to the UAE or being arrested upon re-entering the country.

The judge, working in a UAE court, has ignored that the children are EU citizens and that a court in EU has issued an order prohibiting the children from leaving its territory; has ignored that the children are protected by the Schengen Acquis, and that their custody is dealt under Regulation 2201/03 and an EU Member State has exclusive international jurisdiction. He then ordered the father to bring his children to the UAE and give them to his wife or being arrested upon entering the country without the children. The father was unable to go re-enter the country and terminate his contract and then to claim his end of service gratuity from the University he was working, about 50,000 US dollars. Thereafter he has been unable to pay his credit card liabilities with a local bank. Now the bank is running behind him. His UAE employer, refuses to release the end of service gratuity which could be used to clear his debt with the bank.

"The EC Council (European Union) has adopted a Regulation (EC) 2201/03, known also as Regulation Brussels II, to deal with cross-border family law disputes between couples with connecting factors with more than one EU member states. The EU Council Regulation (EC) 2201/03 rules that when parallel proceedings have been brought in more than one Member State, such as in the case we are dealing with, the ‘Lis Pendens’ doctrine is followed to establish which Member State’s courts have jurisdiction. Lis Pendens doctrine says that the Member State’s court where the petition was filed first, has exclusive jurisdiction on the family law dispute and cease any other Member State courts’ jurisdiction in case other proceedings were started as well in one or more different Member States. The second Member State court where same proceedings started has jurisdiction only if the first Member State court held that has not jurisdiction. When instead the first Member State court where the petition was filed first establish its jurisdiction on the case, all other Member States courts where proceedings started after must reject any parallel application[1] due to the exclusive jurisdiction of the firs Member state.

On the first hearing in the UAE court the father provided an official translation in Arabic of the EC Regulation 2201/2003 and asked to apply article 19 of the Regulation and reject the petition presented by his wife who has already submitted the same petition in the her Member State.

The courts in the UAE wrongly took the view that the Council Regulation (EC) 2201/03 is an agreement between EU Member States. Unlawfully the courts in UAE did not recognize that the Council Regulation (EC) 2201/03 (like any other regulation issued by EC Council) is directly part of Member States internal laws needing no national implementation [EEC Treaty art 189(2)] and therefore starting point concerning issues on jurisdiction and recognition and enforcement of judgments (conflict of laws) in matrimonial matters and the matters of parental responsibility.

It is quite evident by the chronological events time that the children’s mother abused the UAE legal system to overcome the EU laws and jurisdiction of EU Member States: she filed a divorce and custody petition in the UAE courts after she learned that under the above EU laws, her husband Member State’s courts, and not the ones in her Member State, have jurisdiction to examine the divorce and custody petitions.

Under the Sharia law she could get by de facto custody of the children. In a similar case the French supreme court for private and criminal matters (Cour de cassation) ruled that the Algerian born wife has first sued in a French court and that the husband, also Algerian born, had thereafter sued “in haste” for the purpose of defeating the French proceedings in a court in Algeria. Briefly the Cour de cassation denied recognition to the Algerian judgment on the ground that it was the product of a fraud (see attachments).

It is ironic that the UAE courts provided an opportunity for his estranged wife to obtain a divorce and a de facto custody abusing of UAE legal system which so far has served her in one only scope, to obtain unlawfully, as my client claims travel documents for the two children from her Member state’s authorities to abduct the children out from the jurisdiction of the European Union and bring them to the UAE.

[1] In Appendix A enclosed detailed description of the relevant EU law on the 'Lis Pendens'."