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The new family law and cultural revolution of Abu Dhabi: why Abu Dhabi remains forum non conveniens on financial remedy and children matters when compared to England

Byron James, Partner and Head of the Expatriate Law team in the United Arab Emirates, explains recent changes in the family of Abu Dhabi.

Byron James

Byron James, Partner, Expatriate Law

The law in Abu Dhabi recently underwent a considerable change – announced one day in a national newspaper. Thereafter existed a cultural revolution that catapulted the largest Emirate in the UAE into a progressive and modern outlook for the future.

This development followed an announcement, similarly out the blue, in Dubai, almost exactly a year previously, when it was proclaimed that both sex outside marriage and alcohol use would no longer be criminal offences prosecuted under the law. Each Emirate trying to outdo the other in their reaching for modernity.

With the Dubai law change, questions abounded: if it is now no longer illegal to have sex outside of marriage, does this mean it is also no longer illegal to cohabit, and what of a child produced by this arrangement? Do they remain illegitimate under the law and not recognised by the Court, the police, the criminal law, schools, hospitals et al? Children's rights are enshrined in the UAE under "Wadeema's Law" but there remained many cracks through which so called "illegitimate children" could fall. Many of the changes were headline grabbing and – ultimately – in respect of cohabitation and alcohol use, endorsed fairly common practice which was rarely punished unless linked to other, more egregious, conduct. The changes did not answer those follow-on questions and left the position in Dubai in flux: there has been an announcement of a possible welcome destination, but the journey very much remains ongoing.

The Abu Dhabi changes went further. These were substantial and deeply cultural, but still opened the door to jurisprudential questions that will require further watching to see how they are developed in years to come.

The law changes create a new forum for non-Muslims, one that allows them to step outside of the hitherto strictures of Sharia Law. For years, expatriates occupied a headspace where despite living in a country applying Sharia Law in all aspects of family and criminal law, they would conduct themselves as if living in simply a sunnier clime of England, a county just removed down South and a bit to the East. There was a clear and obvious distinction between the de facto and de jure: with the two only colliding in acrimonious disputes between , say, partners, neighbours or colleagues. Consequently, when it came to having alcohol at home or a live-in partner, many fell foul of laws they did not know applied to them or even existed, despite many years of living in the Middle East.

For non-Muslim expatriates, they are now able to obtain a civil marriage, as long as they are over 18 and both consent. The prior requirement for a pre-marital examination – to confirm whether the wife was pregnant thereby rendering the marriage not possible – has been removed entirely from this process.

When divorcing, non-Muslim expatriates are able to access a no-fault divorce procedure: no behaviour allegations are required. The previously compulsory "Family Guidance" stage has been dispensed with, where once it was intended (in the same way as Part II of the Family Law Act 1996) to try to keep couples married and away from divorcing. Much like the failed English version, it was too paternalistic and often provided more nuisance value than help. We are therefore presently occupying a world where one can obtain a no-fault divorce in Abu Dhabi but not yet in England.

A new range of financial remedy considerations are also available – unless otherwise provided for in a marriage contract – thereby rendering an interesting new and important market for pre-marital agreements for those seeking to marry and live in the UAE. The Abu Dhabi Court now has a wide discretion to apply a number of relevant factors: the length of marriage, the ages of the parties, the resources of the parties, contributions, conduct, compensation, needs of children – all items well understood in England and accordant with what one might find in section 25, Matrimonial Causes Act 1973.

As regards child arrangements, there is a specific provision which confirms that the default position on separation will be shared custody between a mother and a father. There is no hierarchy between the parents and the phrase 'primary carer' – often wrongly used in children cases in England – has been specifically dispensed with and disabused. The intention and focus of the new law is to protect children from the negative effects of divorce by removing arguments regarding their care.

It is of note that the Abu Dhabi personal status court follows a civil law system wherein precedent is not binding and case law does not have the same status as, say, in England. It is more difficult to both predict and monitor how these laws will be applied in future: does it matter whether you give a wide discretion to judges if they are not prepared to exercise it? To what extent will the largely socially conservative judiciary in Abu Dhabi seek to embrace wide ranging financial remedy orders against parties to a divorce? How does a discretionary system operate in financial remedies when there is no precedent to guide thorny issues such as short marriages that have produced significant assets, intermingling of non-matrimonial property, intervenor/third-party ownership issues, etc, etc... As we in England have discovered, there are many ways for financial remedies law to produce challenging problems that need to be solved through careful and consistent application of principle over many years. How will Abu Dhabi seek to implement that and over what timeframe?

Whilst admirable in intent, gaps still exist in the law. The interim remains something without remedy: no freezing injunctions, no legal funding orders or reviewable dispositions? How would the Abu Dhabi Court resolve the inequality of arms between a wealthy husband instructing elite lawyers as against a wife impoverished by the convenience of historic martial financial arrangements. Will there be a concept of matrimonial property and sharing, or will the current conduct driven only arguments of Sharia continue to endure with regards to capital? What of pensions – entirely unrecognised in the UAE – will they remain entirely outside the ambit of the Court? What of foreign property – will they avail themselves of a more in personam style order – as used in England – which enables the transfer of property based anywhere in the world?

The most significant omission is in the rules of disclosure. Still no procedural rules exist for family proceedings and there is no general duty of full and frank disclosure on either party, albeit that of course there can be judicial requests for specific items as and when the same

becomes relevant. The reason for this omission previously was that there was no property sharing nor any conception of matrimonial property to be shared. The new law does not seem to specifically introduce new capital orders or sharing, but if it does it can only do so alongside a disclosure duty presently not extant under the law. This alone often renders decisions as between England and the UAE quite different, and the latter requiring further resolution via Part III, MFPA 1984 in England.

Without these issues being addressed, the law changes remain probably unsuitable where: there is a capital or income disparity between the parties; there is property based abroad; issues of third-party ownership are relevant; and no interim issues of legal funding or protecting or recovering assets exist. For these reasons, it is unlikely that the English Court could presently consider Abu Dhabi forum conveniens over an outcome in England: it is the difference between established law and good intentions. There is also an interesting aspect for husbands/fathers: whereas once the law in Abu Dhabi could be described as detrimental to both parties, just in different ways (women would lose out financially and in terms of no parental responsibility and men in terms of losing time, especially overnight, with children), an unintended consequence of the law change is it removes one considerable disadvantage for men without quite balancing the scales for women.

As regards children matters, whilst the changes to the default on separation is very welcome, what of leave to remove (a common problem for expatriates in the UAE) where there remains no comparable law to the Payne criteria in England. Nor is there an organisation comparable to CAFCASS and therefore no social work involvement in the way it is available in England, depriving the Court of its "eyes and ears" in a private child dispute. The UAE also remains outside of the Hague Convention in relation to child abduction, and there stands a considerable jurisprudential hole where it could be.

The above review is not intended as criticism. There is no more modern or progressive Muslim country in the world than the UAE. The changes made in the last 12 months are extraordinary, brave and an important step on the ladder. Sheikh Khalifa bin Zayed Al Nahyan and his Abu Dhabi legal team deserve immense credit for the brilliant work they have done for expatriates in Abu Dhabi: the default and baseline position for expatriates is now entirely tolerable but that is a different question from whether it offers a comprehensive and viable alternative forum for a financial remedies claim to be determined. Whilst the basic aspect of child arrangements on separation has been remedied to something to be applauded, what of the more complex questions as to when a party wishes to change country or make complex allegations against the other – there is presently no comparison between England and the UAE jurisprudentially.

The new law changes in Abu Dhabi are an amazing and welcome first step, but there remains much progress to be had before it stands as a forum conveniens as against England for most English expatriates.