The Appeal Court Has The Duty To Adjudicate All Matters, Including In Matters That Fall Under The Discretionary Authority Of The Trial Court.

Case Summary: wife files for fault-based divorce from her husband and custody of daughter and related maintenance charges. The wife claims that the husband forced her to leave her job. He is disrespectful towards her, insulting and abusing her, in front of their children, without any reason. The couple has two children, and the husband incites their son to hit her. She also claims that the husband injures himself and sends photos to her family claiming that she assaulted him. He also quarrels with her family, demanding that he be given dowry. The wife also claims that he suspects her of having illicit relationships and checks her phone. He has abandoned her marital bed for the past five years and only provides for food and clothing. She states that she finally filed for a divorce when the husband left her and the daughter alone to travel to India with his son.

The husband denied the claims made by the wife. The parties lived together in the marital residence paid for by him. He states that the wife began creating problems during the corona period, as she had left her job in a different country and moved to the UAE. He claims that she assaults him and their son who has mental issues. She has also relinquished her responsibility over their son. When the husband decided to travel to India for the son’s treatment, the wife refused to join, giving an excuse that the daughter had summer activities in the country. The husband continued to bear the family’s expenses while he was in India, and was astonished upon returning to the UAE to find that the wife had initiated a divorce. In an alternate case filed by the husband, he requested that the wife continue the marriage in obedience, and alternatively, in case the divorce is granted, the husband be given sole custody of both children.

Only one female witness appeared on behalf of the wife and she testified to the statements made by the wife regarding the husband’s behavior. She also stated that the son hated the wife and did not want to live with her. On the other hand, the male witnesses produced by the husband testified to the husband’s good character and added that the son was mentally ill. Witness 1 also stated that the wife was rude to the son.

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 Federal Decree-Law No. 41 of 2022 on Civil Personal Status, if either spouse files for divorce, it will be granted without any need for justification of the request, or proving fault on the part of the other party. Consequently, the court granted divorce as requested by the wife. Accordingly, the husband’s request that the wife continue the marriage in obedience and fulfill her duties, was rejected by the court. Regarding custody of the children, the court stated that as per article 10 of the Civil Status law, both parents are entitled to equal custody of the children, unless one of them is disqualified to be a custodian, or actively seeks to give up the right to custody. In this case, as the wife has sought the custody of only the daughter, and the husband has sought sole custody of both children, the court granted joint custody of the daughter to both parents, and sole custody of the son to the father. The wife’s request for custody charges and custodial residence was rejected by the court as the duties performed by her towards the daughter was equally performed by the husband, and the couple lived in the marital house. The request for a servant was also rejected as the daughter was old enough to serve herself.

Regarding the wife’s request for child support, the court stated that the civil status law established the concept of equality between men and women in article 4 of the law. Article 10 further explains that both parents will have equal responsibility in raising their children, according to their financial status. However, as the wife is unemployed, which fact is not denied by the husband, the court ruled to charge the husband with child support, payment of tuition fee, and health insurance for the child in joint custody. The court however noted that the wife can request for child support only partially, for when the child is in the wife’s custody. The court also rejected the wife’s request for iddah allowance as she is not required to observe iddah period, making her free to marry another immediately after the divorce. The wife’s request for Nafaqah Mut’ah or compensation for divorce was also rejected by the court as this divorce was initiated by the wife.

Court of Appeal findings: Both parties appealed the decision of the lower court. However, the appeal court quashed the decision of the court of first instance on the basis of wrong law being applied to the case. The court stated that as per article 18 of the civil personal status law, the law applies to incidents that occurred or the cases that were filed after the law came into force. For the incidents that occurred or the cases that were filed before its enforcement, they shall be subject to the old law. As the case was filed before the law came into force, it should have been tried as per the personal status law. The case was referred to the court of first instance for adjudication.

Court of Cassation findings: The husband appealed the decision of the Appeal court for miscarriage of justice and application of the law, lack of causation, failure to examine the grounds of the appeal, and rejection of his requests, which requires quashing the ruling.

The Court of Cassation stated that regardless of whether the Civil Status Law or the Personal Status law is applicable to the facts of the case, the Court of Appeal should adjudicate the matter presented before it after applying the correct law. Unlike the Cassation Court, the duty of the Appeal Court is not limited to monitoring the integrity of the procedures before the Court of First Instance, but rather its function goes beyond that to adjudicate the dispute in all aspects, and even in matters that fall under the discretionary authority of the trial court. Accordingly, the court ruled that the husband’s appeal was valid and quashed the decision issued by the Appeal court, and returned the case to the Appeal court for re-adjudication.

In conclusion, the duty of the appeal court is not limited to considering the appealed ruling from a legal perspective or monitoring the integrity of the procedures, but rather its function goes beyond that to re-examine the dispute, even in matters that fall under the discretionary authority of the trial court.

Citation: Cassation Appeal No. 264 of 2023, Personal Status Cassation

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