The New Non-Muslim Family Law of Abu Dhabi

Published: 11/02/2022 09:00

There have been some significant changes in the law in Abu Dhabi in recent times. Most notable is the creation of the non-Muslim Family Court which, for those resident in Abu Dhabi, provides a secular alternative to the otherwise Sharia Law led application of family law.

This Court will deal with both children and divorce/financial remedy matters.

The children proceedings provide a default starting point of shared care with a significant emphasis from Abu Dhabi Judicial Department that they wish to remove the conflict arising from child arrangements from separation. This is a noble endeavour and it remains to be seen what shared care means. Does it literally mean equal sharing of time (which might not always be in a child’s best interests) or a more nuanced version, and if the latter who determines the parameters of the nuance. There will be some scope to deal with specific issue applications concerning the operation of parental responsibility and with the now included non-gender discrimination clauses of the new secular law the previously rigid gender defined roles are not the prohibitive factor they once were to fair outcomes for children. It remains to be seen however how the jurisprudence surrounding specific issue and prohibited steps orders will be developed: will they allow applicants to seek permission to relocate a child or oppose medical treatment. Given the decades long case law pertaining to these issues in England arising out of the Children Act 1989 it is likely that these issues will soon become items to be determined and how so will be keenly awaited.

The financial remedies aspect is, it must be said, not intended to provide a conclusive outcome on a divorce. It seems a more thorough application of the financial remedies law already extant with some matters remedied: it will continue not to make orders over foreign property, there is no power for pension sharing, no intention to share matrimonial property, no duty of full and frank disclosure et al. It does seem that spousal maintenance will be capable of being more than 3 months after the divorce (apropos Sharia Law outcomes) and there is the ability to seek a lump sum that takes into account most of the circumstances of the marriage and separation. The principle appears more compensatory (i.e. that to which one might entitled under a marriage contract) rather than anything towards sharing. Meeting needs will include housing, child and spousal maintenance and other child related expenses such as school fees.

Given the above, it is difficult to see how Abu Dhabi residents could persuade the English Court that Abu Dhabi should be forum conveniens over an English financial remedies’ outcome, not least where there is property abroad or scope for property or pension sharing (or a need to provide proper disclosure). It is also unlikely that an outcome in Abu Dhabi could successfully fend off a Part III, MFPA 1984 application other than perhaps for those with limited assets or no need for substantive orders where it might provide more of a conclusive outcome.

The Abu Dhabi process for divorce is meant to be swift and has no fault as a core principle. This to such an extent that there may be very little role for the respondent in the process. Given the need under English law for a divorce to provide a reasonable opportunity to participate to the respondent (see Family Law Act 1986, s 51(3)(a)(ii)). If the Abu Dhabi non-Muslim process is a very quick one that does not require a response from the other side, to what extent could the process itself be capable of challenge in England as to its validity? This (i.e. refusal of recognition) happened in Joyce (1979) regarding the then Canadian process and Mandani (1984) regarding Nevada. It is notable in more recent authorities that greater cultural sensitivity was afforded, for example in El Fadl (2000) regarding the Lebanon where it was reasonable for no notice to be given and Lachaux (2019) where the Dubai divorce process was upheld as entirely appropriate. The extent to which notice and reasonable opportunity to participate is upheld as valid by the English Court therefore remains to be seen.

Lastly, and most recently, an arbitration scheme has been announced as available in family law cases. It is not yet known who can apply to be such an arbitrator but it at least provides the potential for parties to be in control of the person applying outcomes to them thereby providing for the most culturally appropriate application of law. The limitations of the arbitrators powers is not yet known: could, for example, an English arbitrator require the FPR 2010 process and MCA 1973 to be applied to the outcome of a financial remedies case? If not, are they required only to apply the Abu Dhabi non-Muslim family law and if so is the only benefit then in the margins of decisions (aside from practical convenience)?

Opening the door to judiciary and arbitrators from countries with highly developed family law systems will be crucial in making this process globally respected and endorsed. It will also provide those resident in Abu Dhabi with an impressively modern and progressive family law system.

The intentions behind the new scheme are very good and deserve immense praise. From nowhere an entirely brand new family law scheme has been devised. It will be civil law in focus, but it is hoped that decisions will be published on BAILII in the same way as those from the DIFC and ADGM presently are. Doing so would provide the world with a direct insight to the quality and nature of decision making taking place there, only increasing the likely growing respect with which it will be received.

©2023 Class Legal
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