In Divorce Cases Involving Young Children, A Mother Is Deemed To Be The Natural Custodian Of The Children If She Meets All The Criteria For A Custodian

Case Summary: Wife seeks fault-based divorce, or alternatively, a khula from the husband, and custody of children, on the grounds of physical and verbal abuse and psychological problems seen in the husband. The wife claims that the husband is seen to interact with a frog shaped doll, which has caused grave negative impacts on the children. Unable to tolerate her husband’s harassment, the wife states that she has been residing separately from her husband out of fear for herself and her children’s well-being. The wife requests the court to have the husband examined by a psychiatric specialist. Due to the threats issued by the husband, the wife claims to have obtained a travel ban for her children. She also seeks custody of the children as her husband’s psychological conditions and constant travelling does not make him suitable to be given the custody of the children. The wife also informs the court of her husband’s immense wealth, consisting of assets worth millions of dirhams, including stakes in multiple entities, real estate around the world, yachts and luxury goods. The wife added that despite his wealth, her husband has refrained from financially supporting her and her children since she began living separately from him. The wife requests the court to apply Dutch Laws while adjudicating the matter.

The husband denies all the allegations by the wife and requests the court to dismiss the divorce case filed by the wife. He asserts that the allegations made by the wife were not supported by any evidence and that their marital issues are of a temporary nature. The wife had left the marital home along with their children, without any justification. The husband states that he has always prioritized the wellbeing of his children and the maintenance of a stable family life. Furthermore, the husband contended that the wife had not offered any compensation in return for her request for a khula, thus making it lacking on formal and objective grounds. The husband also raises serious concerns on his wife’s ability to be the custodian of their children. He alleges that the wife neglects her children and treats them inappropriately. She has also denied his visitation rights which prompted him to file police complaints against her. The husband requests the court to direct his wife to return to their marital residence with the children. In the event of a divorce, the husband seeks custody over the children, after referring the case to the custody evaluation committee. He feared that his wife would permanently deprive him of seeing his children by relocating to a distant country.

The witnesses on behalf of the wife testified to the aggressive nature of the husband and stated that he may require psychological help, while the witnesses on behalf of the husband denied witnessing any aggressiveness on the part of the husband, but mentioned that the wife is neglectful towards the children.

First Instance Court (“CFI”) findings: the wife’s request for the application of the Dutch law was rejected by the court as the wife had failed to certify the copies of the law submitted to the court. The Court thus applied the laws of the UAE to the case. Regarding the wife’s request for a fault-based divorce, the court held that the wife was able to prove harm towards her, through circumstantial evidence and the witness testimonials that were made on her behalf. Moreover, the husband’s claim that the divorce case was filed by the wife for financial enrichment was rejected by the court. Subsequently, the court ruled to grant a fault-based divorce to the wife. However, the request for alimony was rejected as the court reasoned that in a non-Muslim marriage, both husband and wife are equal in rights and therefore, the husband is not under the compulsion to provide for the wife, particularly if the wife is employed. The court ruled to charge the husband to provide temporary and permanent child support for the children, as it is the father’s obligation to provide for minor children, specifically when they do not have a source of income. The court also ruled to charge the husband to provide tuition, transportation charges and health insurance as they come under the obligations of a father towards his children. As the wife was the custodian of the children, the husband was charged to pay custody charges and allowances for residence, utilities and a domestic help.

Court of Appeal findings: Both the husband and the wife appealed the judgement issued by the Court of First Instance. The husband alleged that the court had erred in its ruling regarding the divorce, the custody of children being granted to the wife, and the quantum of alimony which was alleged to be unfair to the husband. The husband's appeal was denied by the court. The court rejected the husband's contention that the witness testimonial used to grant a fault-based divorce was unreliable. The court held that as per article 122(4) of Law No. 28 of 2005, the testimonial of a witness will be considered admissible if the witness satisfies all the criteria as per Islamic law. The husband’s contention that the wife was unsuitable for custody was also rejected by the court, stating in the best interest of the children, considering their young age, the wife would be the best caregiver for them. The husband was unable to provide any new evidence in his defense, due to which the judgement passed by the lower court will remain unchanged and valid. The wife’s claim that the alimony and maintenance granted by the Court of First instance was minimal and did not correspond to the wealth and income of the husband was also rejected by the court.

Court of Cassation findings: Both parties once again appealed the judgement before the Court of Cassation. The husband contested the reliability of the witnesses provided by the wife and claimed that the quantum of alimony granted was unfair. The court’s ruling regarding custody was also challenged, stating that the court did not consider the frequent travels of the wife and her other shortcomings, while unfairly taking the husband’s travels and other shortcomings into consideration. The court reiterated the importance of the role of the mother in the early childhood development of children. It determined that the lower court had rightly granted custody of the children to the mother, and charged the ancillary charges for the upkeep and wellbeing of the children. The court also pointed out that the lower court had rejected the claims for absolute alimony made by the wife. The assessment of witness testimonials is made as per the discretion of the trial court and the present court upheld the ruling in that regard. The wife’s contention regarding the alimony charges granted by the lower court was also rejected in its entirety by the Court of Cassation. The court ruled that the assessment of alimony is within the jurisdiction of the trial court.

In Conclusion, in the presence of minor children, the court takes the best interest of the children into consideration and grants custody of the children to the mother. The Federal decree law no. 28 of 2005 explicitly states that the mother will have primary custody of children until the age of 11 in case of sons, and until the age of 13 in case of daughters. The court determined that custody during the early childhood stage is a matter concerning women because during this phase of the child's life, they require care and nurture for their well-being. The mother exhibits greater compassion and care for her child and endures hardships in ensuring their welfare. Thus, the presumption is that the mother is the most entitled to the custody of her young child and has a priority over others in this regard, even without her request, as it aligns with the natural law. If the mother satisfies the criteria required for custody, she is generally chosen to fill this role.

Cassation Appeal No. 110 of 2023, Personal Status Appeal

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