Following a No Objection Certificate from the Family Guidance committee, the parties can file their family case in the Dubai Courts. In the second part of the of the guide through family court proceedings, we shall be outlining some of the common mistakes made by parties while entering into settlement agreements due to the absence of a competent attorney and sound legal advice.
We have experienced that some parties sign the settlement agreement without taking advice from a specialized lawyer, and this has led to some very serious repercussions for the parties and their future. It is prudent to mention here that such settlement agreements cannot be amended unless both parties consent to the amendment. Below are some of the most common adverse outcomes of signing without a lawyer:
Some of the agreements are worded in a manner that says ‘it is agreed that the custody of the children is given to the mother”. The husband signs on this clause presuming that he custody shall belong to mother due to the ages of the children (13 for a female child and 11 for a male child) because the children are under age.
The two tricks are:
Firstly, less access to the child with the above clause, since the father has not restricted the mother’s custody of the children based on their age, it is presumed that even after the ages of 13 and 11, the kids shall remain with the mother, since the father has waived his right to custody. This shall limit the father’s contact with the child as it is more challenging to get custody following such an agreement.
For more information on what precautions to take or what steps to follow in the event of such an agreement, please contact your lawyer.
Secondly, additional Financial Liability. If the mother retains the custody of the child from the ages of 11 or 13 up to 21 years of age, the father shall be liable to pay the child maintenance for that additional period of time which could be up to 10 more years, without the complete information from the mother on where the money is spent.
Although according to article 110 of Law no 28 of 2005, the right of custody cannot be waived, nevertheless, agreement to certain conditions in the settlement agreement makes the claim more challenging as the court is well within its right to refuse the removal of such clauses from the contract.
Knowledge of Law; another problem which might surface would be one of the parties claiming that they were unaware of the laws of the UAE as this is a foreign o\country to them.
This is also why it is recommended that both parties seek sound legal advice before entering into such settlement agreements in the Family Court as it could have a serious effect on their future rights and obligations towards the other party.
We will now explain the process followed by the court in family cases, and what the parties might expect in the family court, and how to deal with each step in the process starting with submitting the Statement of Claim.
- Statement of Claim
The statement of Claim is a document drafted by the Claimant or the lawyer. The statement of claim has to be in writing and in the Arabic language. It should include the names of the parties, the location and addresses of the parties along with their phone numbers, the legal grounds for the claim and the request and demand of the claimant. The statement of claim is a summary of the facts and leads the way further into the process.
- Submitting the Claim
The statement of Claim is submitted to the Family Court via an online system. After the claim is received by the Case Management Department at the Family Court, the claim is studied. Following this, the court might ask the claimant for further clarification of the submitted claim which might include clarification of the facts, or the contact details of the parties, or any other information the Court thinks is necessary for the claim to proceed to the next step in the Family Court process.
- Notification Process
The notification process is, perhaps the most challenging part of the proceedings for the claimant. The notification process is lengthy and time-consuming and can take up 30% to 40% of the time of the entire case. This time can be anywhere up to 4 months.
Upon the filing of the case, the Notifier (Clerk of the Court) shall issue a summons for service of the Court proceedings upon each Respondent listed.
The summons shall be signed by the Court and it must contain the name and address of the Court and the names and addresses of all the parties. It must be directed to the Respondent(s) and includes the date on which the Respondent is asked to appear at Court for the initial hearing.
The Notifier (Clerk of the Court) shall take the summons and attempt to serve the same on the Respondent. However, there are many cases in which the clerk is unable to serve the Respondent, for example, when the provided information regarding the Respondent’s place of work or residence is unclear, incorrect or the Respondent was not present at the address when the service was attempted.
In circumstances where the Notifier was unable to give notice to the Respondent, the Judge will adjourn the hearing and make an order to follow the Guidance procedure. This process enables the Claimant or his representative to accompany a clerk to the Respondent’s home to attempt to serve him. If this process still does not result in the Respondent being served, the Judge will order an ‘Investigation’ to take place.
If the Guidance does not help for any reason, such as the address does not exist or it was closed, then the court shall postpone the case for an investigation process. This means that the official letter shall be sent by the court to Immigration and CID to find out information about the opposing party.
At this stage, there are two likely scenarios:
If the Government authorities report back stating that they do not have any information about the Respondent, the matter shall proceed to the Publication Stage (see below). It is rare that the Governmental authorities cannot provide information on an individual.
If the Governmental authorities do provide useful information about the location of the individual, the notification process will be repeated, with or without Guidance.
If the Respondent could not be notified, the Judge will adjourn the hearing to allow a publication to be made in the newspaper. An advertisement will be made in a UAE based newspaper requesting the Respondent make contact with the Court within a certain period. The publication can be made twice in Arabic and/or English, or in Arabic only if the respondent is an Arabic speaker and the cost of the publication must be borne by the Claimant. If the Respondent does not contact the Court within the time period, the Judge may order that a further advertisement be published in the newspaper.
After both publications, if the Respondent does not attend the next hearing listed, the case will be postponed for judgment.
In some circumstances, the Respondent is correctly served by the Notifier but fails to attend the initial hearing. In such circumstances, the Court decides to notify the Respondent for the second time and in the event that the Respondent fails to appear the Judgment is made by the Court.
It is important to mention here that according to the new changes in the UAE Civil Procedures in regards to Personal status Law, the Judge has the right to allow the claimant to serve notice by courier, fax, personal delivery or by email. However, in our experience such practice might not be applied in some cases.
Following the notification of the parties, the process of exchanging memos starts. The initial memo is submitted by the Claimant or his lawyer to the court as Statement of Claim. After this is done, one of two things are likely to happen: Firstly, The Respondent might ask the court for more time to study the Claim, or time to appoint a lawyer. Secondly, If the claimant attended the first hearing himself, his lawyer is likely to ask for time to study the file. These requests shall be submitted in writing to the court or verbally.
It is mandated by Law, that during te course of the proceedings, the court must offer the Parties an amicable settlement to the dispute at least once. The court has wide discretion as to when it think it appropriate to do so, however, it is a compulsory step by the court. This offer of an amicable settlement can be offered by the court both at the First Instance stage as well as the Appeals stage.
Keeping the significance and the moral structure of the society and the importance of family therein, the offer of a settlement by the court is the last attempt by the court to reconcile between the parties. The parties are required to be present, in person, at this stage.
If an amicable settlement is reached between the Parties at this stage, an agreement is drafted and placed in front of the judge for his approval. If and when he accepts, the agreement becomes part of the judgment in the case and id documented for all future reference as both parties are bound by the terms and conditions of this agreement.
If no amicable solution is reached, the case resumes and takes its legal course.
There are specific kind of correspondences that the court accepts, and the mediators play and important role in the processes of the family courts, whose purpose is to communicate between the parties to settle an amicable solution to the family dispute.
- Acceptable Correspondence
The Family Court in Dubai considers and in most instances accepts all written correspondences exchanged between the parties as evidence of proving one’s claim or disproving the claim of the other party. The written correspondences include emails, text messages, whatsapps and other commonly used tools of written communication.
In the event that the Claimant’s claim is not easy to prove, the court might appoint mediators. The purpose of appointing such mediators is to communicate independently and together with the parties in order to reach an amicable settlement and to explore any options they might have to reach a workable arrangement. This done keeping in mind the social importance of the family unit in the society.
During these communications between the mediators and the parties, the mediators try to explore the reason for the claim and the requested divorce and to try and work out who is responsible for the breakdown of the marriage and how it can be resolved. The mediators seek to learn if a happy life is possible between the parties and if there are any chances of reconciliation.
In the event that the mediators are successful in convincing the parties to stop the divorce proceedings under certain agreed conditions signed by the mediators, the same is then referred to the family court. The parties have an opportunity to make objections to the report submitted by the mediators and can counter-argue their own claim supported by evidence. The judge does not have the legal authority to disagree with them.
If the mediator recommended the divorce, the court would not have any discretionary powers to change their decision. However if the mediator suggests compensation to be paid to the wife, such a decision would be subject to the court appeal which will be limited to the judgment related to the financial settlement only.
If there is an agreement between the Parties, the judge in the family court reviews the agreed conditions and terms between the parties and in the presence of the mediators and makes the agreement of terms a part of his judgment in the case, and is hence a legally binding document.
If there is no settlement between the parties, the court proceeds to calling the witnesses.
90% of the cases will involve witnesses and they can have the biggest impact on the outcome of the case, hence reading the article will provide valuable information to ensure a strong claim. We will explain who are accepted as witnesses and what their impact could mean for the outcome
Witnesses are also accepted by the court as valid contributors of evidence. The witnesses testify to the reasons of the conflict between the parties. The witnesses can give as much of a detailed account of the relationship between the husband and wife as possible. This could include any instances of physical harm or abuse, verbal abuse, disrespect, the parenting skills of either party, and any account of expenses being paid or not paid by one party to the other. The parenting skills testimony is required by the court to evaluate the best interest of the child while addressing the question of custody.
It is not recommended that the witnesses seek any guidance or meeting with the representative lawyer of the party. This is so that the court can get a clear and impartial picture of the statement of the witness without any external pressure. The witnesses are required to take their emirates ID or passport along and should be 21 years of age. They are required to take an oath on their holy book prior to their statements. Legal Translators can be arranged by the court since the proceedings of the Family Court are in Arabic only. English to Arabic legal translators are often available on the spot, however, other languages might need to inform the court the same day of their need for a legal translator.
It is also recommended that if the party on whose behalf the witness is appearing is Muslim, the witnesses should also be Muslim. If the party is non-Muslim then non-Muslim witnesses might be accepted by the court. There should be 2 male, or 1 male and 2 female witnesses. The female witnesses shall be heard together whole the male witnesses shall be heard alone. Additionally, there is no audience in the Family Court so the entire procedure is very private and confidential.
Family members can be witnesses as well, however, parents of the parties cannot. This rule goes back to the impartiality of witnesses since it is unlikely that parents can be impartial witnesses in their children’s matters.
It is also important that the witnesses not have any direct conflict with either of the parties and is able to give a clear and precise account of the parties’ family life. This means that the witness should be able to give locations and dates of certain events, give clear and precise facts and the source of the fact(s) and the reasons behind their inferences.
Procedure-wise, the witnesses of the claimant are heard first, followed by the witnesses of the respondent. This can be done in the same hearing or they can ask to postpone the hearing to another day. This also depends on the number of witnesses presented by the party. The process does allow for the witnesses to be cross-examined, however, the cross examination is done by the judge only who accepts the questions from either party or their lawyer and may choose to put the question to the witness or not.
In the Family Court, witnesses often play a crucial and decisive part in the proceedings. In many cases, the testimony of witnesses can lead the way to one parties’ success or failure in the case and his/her claims made therein. In certain cases, the judge may decide to give more weight to the testimony of the witnesses rather than documentary proof, if he deems fit for the purposes of delivery justice. Hence, it is fair to say that witnesses are the key to success in the Family Court.
The Court then decides a date to issue a Judgment and informs both parties that the judgment will be issued in the next hearing. On the specified hearing, the judgment is issued which is referred to as the Judgment in First Instance. The judgment in Fist Instance can be appealed within 30 days of the Judgment. If there is appeal from either party, the judgment in First Instance becomes final. If an appeal is filed by a party, the case goes to the Court of Appeal.