الأحكام الخاصة بطلاق المغتربين داخل دولة الامارات العربية المتحدة

Choosing the Jurisdiction of Expatriate Divorces in the UAE

An interview-format article covering the topic of divorce for expatriates in the UAE and seeking to apply the laws of their countries. This is from the legal podcast of lawyer Ludmila Yamalova, the founder of Lawgical with LYLAW.

Tim Elliot: Welcome to Lawgical with LYLAW, the regular weekly podcast from the Dubai-based law firm, HPL Yamalova & Plewka. I’m Tim Elliot, and I’m here at the firm’s offices in Jumeirah Lakes Towers with the Managing Partner, Ludmila Yamalova. It’s nice to see you again.

Ludmila Yamalova: Good to see you too.

Tim Elliot: This week was going to be marriage and divorce here in the UAE, but there are just not enough hours in the day to do both, so we are going to try to do an overview of divorce. To try to keep this to the point, we will consider divorce for non-Muslim couples for the purposes of this podcast. For divorce amongst people who identify as Muslims, we’re going to come back to in another separate podcast.

Let’s try and break this down, Ludmila. A couple agrees it’s time to go our separate ways. It’s a sad time. It’s a tough time. Where do you start here in the Emirates?

Ludmila Yamalova: Not an easy question to answer in one go. I’ll give the intro on that. It really all depends. It depends on a number of factors. It depends on the nationality of the couple and where perhaps they were married, whether they have children, whether they have any assets, and where those children and assets may be, and the age of the children, and the types of assets, and so on and so forth.

But in the simplest case, that is let’s say, an American couple, both U.S. citizens. Let’s say they have one child, and they are based here, and they got married in the US. In that particular case, at least it’s easy to identify the law that should apply to their divorce and perhaps a place where that divorce should be affected best, and that would be the US.

But the UAE being what it is, there are very few couples that are that simple. Most of the time couples here are very multifaceted in terms of nationalities, backgrounds. Most of the time the spouses come from different countries with different nationalities, and they might have gotten married yet in another country. Many of them actually hold citizenship in more than one country, and often the kids were born in yet a third country. Often the kids hold passports that are not necessarily identical to those of the parents and so on and so forth. In that particular case, it’s quite difficult to identify perhaps the venue where the divorce should be affected first and what law should apply.

Tim Elliot: Okay. Let me just ask you this. Can you elect which venue of law that should apply

Ludmila Yamalova: Once again, it depends. If both parties agree, yes. Then they can elect. But if they do not, and let’s face it, we’re talking about divorces, and in most cases, divorces by their very nature are acrimonious and the parties are not quite on the same page. They are often at odds and therefore finding that consensus in terms of venue and law may be difficult.

Now the default in the UAE in terms of the personal status law is Sharia. But the complexity of Sharia is that very definition of Sharia it only really applies to Muslims. Yet, in practice, if a couple or one of the spouses decided to apply to the local courts for a divorce, then by default the court would first try to apply Sharia. Parties can agree, and if they agree, then the divorce will be affected under Sharia. That is the other easiest case to manage.

But in most cases, that too may be very difficult to agree on because obviously depending on who is asking for a divorce, Sharia may not be necessarily a convenient law for both parties, especially for example for women and mothers. They may want to have the laws of their countries apply, in particular with a question with guardianship for children because under Sharia guardianship goes with the father and custody with the mother, whereas in other jurisdictions it’s a 50/50 split.

Tim Elliot: Let’s take the case of an American couple. For the sake of argument, a US couple married in the United States who have been in the UAE for some time elect to go through a divorce settlement in the courts of the United Arab Emirates. You said divorce is acrimonious. We’re all aware of that. Besides, it’s an unsatisfactory outcome. Could you then apply and elect to go through the same in the United States?

Ludmila Yamalova: It’s an extremely complicated question. It’s a very pointed question because these scenarios do happen, but it really depends on how their divorce was managed or administered. In other words, their divorce here in the UAE could have been administered as a settlement. That’s different from a court order. When couples approach the court, there are two ways of ultimately securing a divorce decree.

One way is that ultimately it starts out acrimoniously and they approach the court in disagreement, in the end, they decide to actually sit down and put down on paper the terms and conditions of their separation. In that case, the divorce ultimately is administered vis-a-vis a settlement agreement, and that settlement agreement gets registered with the court. Now you have a divorce, but the divorce is supported by the settlement agreement that is agreed to by both parties. That’s one way of doing it.

The other type of divorce is that when parties don’t reach an agreement and in fact, it goes to the courts. For the courts to apply Sharia in this jurisdiction, both parties really have to agree, unless they’re Muslim obviously. In case they don’t agree but they both agree on the US laws to be applied because they’re both US citizens, they can do that. They can elect their own laws to be applied in the local courts. For many reasons it’s a difficult exercise because you’re asking the local courts here, the UAE courts, to look at the US law and figure out what the law is and figure out how to apply it in the context of this particular couple.

That being said, it is possible. It has been done. There have been divorces that have been administered and concluded by local courts on the basis of using foreign law. Now let’s say it’s that kind of scenario and we have now a court judgment. For an American couple divorcing, there is a final divorce decree, and that divorce degree is based on the application of US law. Now, fast forward a few months or years and one of the parties in this couple decides to challenge that decree. Then they would do so in the US.

Now imagine bringing a court order from the UAE regarding the rights of American citizens basically dissolving an American marriage. You’re trying to enforce this foreign judgment, the UAE court, applying American law in the US. You can imagine this is a very complex, but rather interesting exercise because chances are the courts may not want to enforce a foreign judgment in the US where their own laws are being applied. Chances are, and obviously even if they were open to enforcing it, you can imagine how the courts would want to at the very least examine to ensure that the UAE judges actually applied the US laws correctly.

It’s extremely complicated, but it’s a great question and certainly one that we’ve seen before, and certainly, one that the party who may want to later challenge the decree has a pretty good chance of success and at the very least opening up the divorce decree to interpretation before a US judge, in other words, having a second bite of the apple.

Tim Elliot: Let me take it back and take it back to basics for a second. Let’s take an example of a couple from the same place – let’s use the US as the example – who get divorced here, who go to the courts here in the Emirates. What is the procedure? Let’s just look at the procedural aspects, the things that you have to do to initiate proceedings.

Ludmila Yamalova: The starting point will be first deciding where they want this divorce to be initiated. Just because you’re based here does not necessarily make this a natural place to start with. Perhaps it’s more convenient or at least on the surface a more convenient place, but because of the nuances in the legal systems, and let’s face it, a language barrier, because anything that happens before the local courts here happens in Arabic. Because of all these nuances, it may be that even though perceptively this may seem like a natural place to start, ultimately the parties decide to take their divorce back to the U.S. and get divorced there.

The first decision will be to decide where to start the proceedings. In most cases, the best way or the best venue to choose is where the assets lie because you may have a divorce decree here in the UAE but if most of the assets that are in play are based elsewhere it would be very difficult to enforce and challenge to enforce this foreign decree in a different jurisdiction related to those assets. The better place to start is where the parties have the most interest. But again, the UAE being what it is, there are so many couples with mixed assets all over the place, it may not necessarily be a very clear choice.

If the parties decide to effect their divorce in the UAE, they would approach the local court and depending on what emirate they’re based, let’s say it’s Dubai, they would approach the Dubai family court and one or the other party would have to apply to the courts to initiate a divorce. The default here would be Sharia. The court would look at Sharia and want to apply Sharia by default. However, by law, because Sharia only applies to Muslims, in order for the courts to apply it, technically speaking both parties have to agree to the application of Sharia.

If one does not agree, then they could introduce a different law and that would be the law obviously that they would want to use, but it has to be a justifiable place of law, which is not always easy. Let’s say both are from the same nationality and they were married in the same place, it would be easy for the non-consenting party to introduce and convince the court why they need to apply, let’s say, American law versus Sharia law.

At that point and even before then, one of the first steps that the court will do is that they organize a mediation, a mediation where both parties come forward before a judge and they try to discuss perhaps an amicable settlement to their dispute and perhaps some kind of a grace period before they proceed formally. These mediation proceedings do happen before the local courts, and in most cases, they can also be conducted in English even though it’s also oral.

Mediation is nonbinding, but they are almost always a necessary step in the process. In other words, the courts will not proceed formally unless mediation took place. In most cases, the courts or the judge gives parties more time to go back and reflect and think and have a repeat of mediation hearings and ultimately if they don’t agree and they may not agree on a whole series of things, about the idea of a divorce, the place of divorce, the choice of law, depending on what the parties argue and how they approach, the court may either give one of the parties permission to file a formal case in the local courts.

But even at that point, the other party may be able to challenge the jurisdiction of that court, but it would have to happen before formal proceedings. In other words, for a formal proceeding to start, it has to first be filed as a mediation. So, first, when you approach the court it’s done by the form of mediation and only after a few mediation hearings, it becomes a formal court process, if you will.

Tim Elliot: Okay. So, a formal court process is applied. You then look at a joint property, whether that’s a home, a car, a yacht, whatever it might be. That’s the asset side. What of the liability side as well?

I’d like to talk about that because there could be car loans, mortgages… How does that work in the Emirates?

Ludmila Yamalova: You used two interesting words. One was joint and the other was a liability. That is because this is really where the question of the choice of the law becomes essential, and that is if you apply Sharia to divorce, under Sharia each party walks away with its own interest. Whatever is yours is yours. Whatever is mine is mine. In other words, if you and I have a property together that we own jointly, my 50% is my 50%, and your 50% is your 50%. Upon application of Sharia, we are not dividing up that. Your 50% you walk away with and I’m walking away with mine.

By the same token, if the property in which we live is only, let’s say, in your name 100%, I don’t have a claim to it. That’s under Sharia. That’s why the choice of law is very important because if it’s Sharia that’s applied in that case, to answer your question, if the property is yours and you have a mortgage to it, then the liability is 100% yours as well.

If the property is jointly owned by us and we have a mortgage, then we’re both on the hook for it. Now let’s say if you apply a choice of a different law, for example, American law or let’s use one of the European laws, let’s say, Sweden, in many of the European countries, in particular, all the assets that are amassed during the marriage are the property of spouses 50% and 50% of both parties. In other words, even if the house is 100% in your name, 50% of it is mine. That’s why the choice of law is extremely important.

The key here is to convince the court. Let’s say I want American law to apply or German law to apply to our divorce and that house is now 100% in your name. Should it be transferred 50% to me? That’s a very challenging exercise, but possible. This is why it’s important for parties to know ahead of time what all the nuances are so that they can effectively agree on one choice of venue to start the proceeding so that they don’t potentially have multiple cases going on at the same time, which happens quite frequently.

Tim Elliot: We come to liabilities as well. Is it safe to assume or reasonably safe to assume or not that if you have joint ownership of a property, but there is a mortgage on that property, then it is a 50/50 liability?

Ludmila Yamalova: Correct. This is also an interesting question because often we are asked about, in the case of divorce, by one of the parties, well, let’s say my husband has a car loan, am I going to be responsible for it? My husband has a credit card loan. Am I going to be responsible for it?

Here, by default, just because you are married, the responsibility is not joint. If now that same bank account was joint and had both parties’ names on it, then yes, the liability will be shared. But just because we were married, I’m not responsible for liabilities on your bank account, just like I don’t have the benefit of the bank account by virtue of our marriage.

Tim Elliot: Children. Neither assets nor liabilities. Some people would argue they are both, I suppose. Let’s take the example that we have here of the US couple who elect to divorce under the UAE court system under Sharia.

Ludmila Yamalova: It can be very complex. It could be very simple. It depends on the demographics of the family or the fabric of the family at the time of the divorce. The general rule in the Sharia is that the guardianship follows the father, the custody follows the mother. Now guardianship, in short, is a long-term legal right to make decisions about the children’s well-being or the children’s interest. Custody refers more to the physical possession of the kids.

But custody also depends on the age of the children and the gender of the children. It really depends, but usually, the custody of minor children follows the mother until certain ages. After a certain age, then they would basically be passed on to the father.

Tim Elliot: What would that certain age be

Ludmila Yamalova: For boys, it’s 11 and for girls, it’s 13. But most of the judges here in the UAE, perhaps it’s somewhat different in other countries, but in the UAE, judges tend to keep minor kids together. Let’s say you had a boy who was 12 and he had a sister who was 7. Chances are that judges will allow the mother to keep custody of both to keep children together and not separate them.

Tim Elliot: We’re looking specifically at divorce for couples who are non-Muslim here in the UAE, and there is so much more to this. But let’s just recap as briefly as we possibly can, Ludmila. I know it’s tough and just go over once again, how would you conclude this discussion?

Ludmila Yamalova: The way I’d like to conclude this is my advice is for parties to go back to the home country and initiate divorce there. Either that or agree, and as difficult as it may be, on an amicable separation here. In most cases, we see parties ultimately end up doing exactly that, and that is, settling or coming up with some sort of a settlement formula to formalize their divorce here because it’s just more convenient.

My advice is just to go back to your country of origin or agree on an amicable separation here so as to ensure that ultimately the well-being of the children is unaffected in the long run and that the enforcement of a divorce decree is effective vis-a-vis the assets which will fall under.

Tim Elliot: That’s it for another edition of the Lawgical podcast. Ludmila Yamalova is the Managing Partner of the Dubai-based law firm, HPL Yamalova & Plewka. As ever, thank you.

Ludmila Yamalova: Thank you.

Tim Elliot: Next time on the Lawgical podcast, we will be discussing divorce again but among Muslim couples.

This article is a transcription of the Lawgical with LYLAW podcast episode published on 30 July 2019.

Written by:

Ludmila Yamalova | HPL Yamalova & Plewka DMCC

اعادة نشر بواسطة محاماة نت .