Fault-based Divorce May Be Granted Even If Prejudice Is Not Repeated, As Long As The Continuation Of Marriage Is Rendered Impossible

Case Summary: Wife seeks fault-based divorce from her husband and custody of their child on the grounds of physical and verbal abuse, not providing for the family financially, and the abandonment of the marital bed. The wife claims that the husband drinks alcohol excessively, which results in his bad behavior. The wife also states that she is the sole breadwinner of the family and the husband’s behavior has made the continuation of marriage impossible.

The husband denies the allegations by the wife. He states that it was his wife who had stopped him from entering their marital residence. He was unemployed for a period of time and as a result he could not provide for the family. Once he obtained a job in Kuwait, he had to travel between the UAE and Kuwait. As his wife does not allow him to enter the house, he has been forced to reside elsewhere. The husband claims he has not been able to financially support his family after he obtained a new job as he was unaware of his wife’s bank details. The wife contends that she stopped the husband from entering the marital house out of fear for the safety of herself and the child.

First Instance Court findings: As neither party requested the application of their personal laws, the laws of UAE were applied to the case. As per article 7 and 8 of the Federal Decree Law No. 41 of 2022 on Civil Personal Status, divorce may be granted if a spouse requests for the same, even without providing any justification or attributing any harm to the other party. Accordingly, the court ruled to grant divorce to the wife. Although the civil status law provides for joint custody of children, as was established to the court that the husband works in a different country and as he travels a lot, and as the child is already in the custody of the mother, the court ruled to grant the custody of the child to the wife.

Regarding the wife’s request for payment of backdated expenses for the previous three years, the court stated that the civil status law stressed the importance of equality between men and women, granting both equal rights to obtain divorce, custody of children, inheritance of property etc. Nevertheless, article 9 of the law provides for a woman to obtain alimony from her husband under certain conditions, as per the discretion of the judge. However, as it has been established that both parties earn a living, with the wife’s income exceeding that of the husband, the court ruled to reject the wife’s request for backdated expenses.

The wife also requested that the husband be charged with providing child support. The court reiterated the principle of equality between genders and stated that the parties will contribute equally towards the child’s maintenance, according to the income earned by both. However, as the husband had not provided for the child since he obtained a new job, the court ruled to charge the husband to provide backdated child support for the child, going back to a year, as per article 86 of the personal status law. The husband was also charged to bear a part of the tuition fee of the child. The wife’s request for rent was rejected due to lack of details in the claim, and her request for furnishing allowance was also rejected as the residence that the wife continues to live in is already furnished.

The court ruled to grant the wife’s request seeking the handover of the passport of the child as it was established that the husband is constantly traveling.

Court of Appeal findings: the decision was appealed by both the husband and the wife. However, the court indicated that as the case was filed before the civil status law came into force, Federal Decree Law no. 28 of 2005 regarding Personal Status law will apply to the case. Consequently, the previous rulings were quashed and reissued as per the Personal Status Law.

The request for divorce was rejected as the court determined that the wife had failed to prove her allegations of harm with substantial evidence as per the personal status law. Accordingly, the child custody given to the wife was also quashed as the marriage now stood valid between the couple.

Furthermore, the husband provided documents showing several transfers made by him to the wife’s account, stating that her claims that he did not provide for the family was untrue. The court duly amended the amount pertaining to backdated expenses for maintenance of the child. However, as the Personal Status Law obligates only the father to provide for the child, the husband was charged with the full payment of the tuition fee, and child support for the child.

Court of Cassation findings: Both parties once again appealed the decision, before the Court of Cassation. Regarding the decision by the Appeal court to revoke the divorce, the Cassation Court observed that the husband had admitted to ceasing to provide for his wife and child once he obtained a job in Kuwait. This amounts to harm which requires the granting of the divorce to the wife. As per article 117 of Federal Law No. 28 of 2005, regarding harm or prejudice to be established for a fault-based divorce, prejudice has multiple forms, physical or psychological harm, or failure to provide for the family, all of which renders the spouses’ kind association impossible. Establishing one of the forms of prejudice establishes the prejudice, even if it has not been repeated. The spouse requesting the divorce must establish the prejudice inflicted thereon by the other spouse. Accordingly, the wife was granted divorce and custody of the child

Regarding the custody of passport and identity documents- as the husband was working in a different country, and the work involved a lot of travelling, the court issued a decision to enable the wife to hold the identity documents and the passport of the child.

The husband appealed the decision stating that as the divorce was revoked by the Appeal court, he should not be made liable to pay tuition fee and child support for the child. This contention was rejected as the Court of cassation had once again ruled to grant a divorce, this time under the Personal Status Law, and accordingly, the father, as the guardian of the child is obligated to bear all the expenses of the child in custody of the mother, as per the father’s financial capacity.

In conclusion, establishment of prejudice or harm is necessary as per article 117, for the issuance of a fault-based divorce, even if the harm has not been repeated, as long as the spouses’ kind association is rendered impossible.

Cassation Appeal No. 278 of 2023, Personal Status Cassation

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