Court Rules That Nurseries Are Considered As Care Centers And A Father Will Not Be Obligated To Pay For It

Case Summary: Wife who claims to have been abandoned by the husband, seeks custody of children and maintenance for them. The wife alleges that the husband of 7 years had alcoholic issues and a neurological condition due to which he was aggressive towards her and the children. When she requested him to obtain treatment for his condition, he expelled her from their marital home, shortly after the birth of their second child. Since then, he had stopped providing for the family financially due to which she was forced to start working. Her work was based on commission instead of salary due to which she had been unable to earn anything. The husband was extremely wealthy as he owned a company, a house in an upscale locality and many luxury vehicles. The wife also claimed that when her husband learned of the case, he had declared that he would not be returning to the UAE. The wife did not seek divorce in her petition.

First Instance Court (“CFI”) findings: As the husband did not respond to the summons of the court, the judgement was passed ex-parte. The wife had not insisted on the application of personal laws of her country. Therefore, the UAE laws were applied to the case. Regarding the wife’s request for custody over her two minor children, the court stated that although joint custody is to be provided as per article 10 of Federal Decree-Law No. 41 of 2022 on Civil Personal Status, since the children were currently under the sole custody of the wife, and as the husband was not present in the country for a year, it would be impossible to grant joint custody to the parents and as a result, the court ruled to grant sole custody to the wife. Consequently, the court also charged the husband to provide custody charges to the wife and an allowance for residence, furniture and utility bills. Regarding child support, as per article 4 of the federal civil personal status law, men and women are equal in their rights and duties, and must bear the financial responsibilities equally between them. But in this case, as the wife had shown that neither her nor the children had any source of income and as the husband was wealthy, the court ruled to solely charge the husband with child support, health insurance and tuition for the children. In case of the younger child, tuition will be required to be provided once she is eligible for formal education.

Court of Appeal findings: The husband and the wife appealed the rulings of the first instance court. The husband stated that he was wrongly charged with providing custody charges and residential and utility allowance as the couple was not divorced and these charges do not apply in their case. Furthermore, the wife and children were living in the residence provided by him. The court ruled to uphold this argument and annulled the previous ruling by the court of first instance regarding residence allowance. The ruling on child support was also appealed as the husband claimed that he was already providing for the family and spending exorbitantly on them. The proof of husband’s wealth was also proved to the court. Consequently, the court ruled to increase the child support charged to the husband. As the husband had not made any claims for custody of the children, the court did not provide consideration to that point. However, the husband requested the court to order his wife to provide him access to his children. Since this was a new request presented before the court, not forming a part of the original suit, the request was duly rejected by the court of appeal. The wife’s request to recalculate the maintenance was rejected by the court stating that it was a new claim. As the wife had failed to prove any new arguments, her appeal was duly rejected.

Court of Cassation findings: The rulings of the appeal court were further appealed by the wife while the husband requested the dismissal of the wife’s cassation application. The wife contended that although the appeal court had ruled to increase the child support to be provided by the husband, this amount was still too small, particularly when compared to the financial capabilities of the husband. The court rejected this argument stating that the quantum of maintenance was up to the discretion of the trial court. When the wife requested the court to investigate the wealth of the husband and the date from which he had abstained from providing for her, the court rejected the request as it believed that the case’s documents were sufficient for the determination of the facts of the case and an additional investigation was unnecessary. The wife also claimed that the appeal court had erred in annulling the first instance court’s order regarding residence allowance. The court determined that the husband must be charged to pay the residence allowance.

The wife had pointed out that the document provided by the husband indicating that he was providing for the residence of the children was in actuality a document that showed that the lease for the residence is under the wife’s name. The court ruled that the trial court had based its ruling on a document that contradicts the facts established in it. As this ruling was incorrect, the cassation court ruled to annul this ruling of the previous court.

Accordingly, the husband was charged with providing for the custodial residence. The wife claimed that the court had failed to charge the husband to pay tuition fees for their youngest child for the current year. The court stated that the father's obligation towards tuition fees does not arise until the child attains educational age thus rejecting the wife’s contention. The wife further contested the lower court’s ruling to reject custody charges when her husband had not specifically asked for, indicating that the appeal court should not have addressed the matter. The Court of Cassation ruled that since the husband in his appeal had asked for the dismissal of the original suit, it would include his request to reject custody charges. Therefore, the wife’s argument in this regard stood invalid.

In Conclusion, the maintenance of a young child having no financial resources, must be borne by the child’s father. Food, education and residence falls under this obligation. However, as per the rulings of the court of Cassation, a child must be enrolled in private education, with the consent of the father, taking into account his financial capabilities, so that it does not cause him financial hardship. Furthermore, nurseries for toddlers are considered care centers as opposed to educational institutions, and a father is not obligated to pay for them except when he does so on his own accord.

Citation: Cassation Appeal No. 261 of 2023, Personal Status Appeal

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