Wife’s Decision To Withdraw Her Request For Divorce Enables The Case To Be Returned To The Lower Court For Reconsideration

Case Summary: Wife, who has been married for 21 years, and has two adult sons, seeks divorce from her husband stating reasons such as abandonment, desertion of the conjugal bed and adultery. The wife states that it has become impossible to continue the marriage as the husband has changed his behaviors towards the wife and children fora year. The wife requests the court to grant her divorce and alimony according to the laws of South Africa, as per the couple’s nationality. She also requests to be granted 50% of all properties owned by the husband, as per the same law. According to the wife, the husband is the owner of multiple properties in and outside the UAE. The wife did not have a source of income as she had dedicated her life to the care and upkeep of her husband and children. She also requests that the husband be charged with providing her health insurance and renewal of residency in the UAE.

The husband denies all the allegations made by the wife and states that he has been living with his wife and providing for her. The wife counters that the husband had closed his bank accounts, denying access to her, to which the husband showed proof that he was forced to do so as the wife had withdrawn exorbitant amounts of money since the filing of the case. The husband requests the dismissal of the case, and alternatively, to limit the amount of alimony.

First Instance Court (“CFI”) findings: As the wife did not submit the relevant South African Laws in the manner prescribed by law, the court applied the UAE laws while deciding the case. The court ruled to grant an irrevocable divorce to the couple as according to article 7 and 8 of Federal Decree-Law No. 41 of 2022 on Civil Personal Status, if either of the couple expresses their wish to be divorced from their spouse, they do not have to justify their desire, and the court can grant a divorce to the couple. The court rejected the wife’s request to be granted half of all properties owned by the husband, stating that she had failed to show that she had participated with the husband in developing his wealth. Her request for alimony was also rejected by the court, as non-Muslims adhere to the principle of equality between men and women. This principle stipulates that the wife is not obligated to provide for the husband, and consequently the husband is also not obligated to provide for the wife. Her request for reimbursement of backdated expenses was also rejected by the court as she had failed to prove that the husband had not provided for her during their marriage. The wife’s request for housing charges, health insurance and the request for renewal of residence permit were also denied by the court. As both children of the couple were well into adulthood, the wife was not granted any alimony or maintenance. However, the court ruled to grant the wife maintenance for the duration of the case.

Court of Appeal findings: Both husband and wife appealed the decision of the Court of First Instance. The wife appealed the decision to apply the laws of UAE. This appeal was rejected by the court as the wife had submitted an incomplete set of the South African laws. A litigant is required to submit a certified copy of the complete laws and amendments, translated into Arabic, and must prove that the submitted law is currently in force in its country. Her appeal regarding share in husband’s property was also rejected as the applicable laws did not entitle a wife to the husband’s property after divorce. Regarding the appealed rulings on alimony and other charges, the court ruled that once divorced, both parties are financially independent and the wife becomes a foreigner to the husband, thus absolving the husband of his financial responsibilities towards the wife. The court quashed the ruling on housing charges and ruled to grant the wife housing until the end of her waiting period. If the wife leaves the house of residence, she will be entitled to a one-time payment from the husband. The husband appealed the court’s decision charging him to provide maintenance to the wife. The court held that as the husband had admitted to closing the bank accounts accessed by the wife, after the initiation of the case, he was liable to provide alimony until the end of the legal proceedings. However, the court ruled to reduce the temporary maintenance amount to be paid to the wife.

Court of Cassation findings: The wife appealed the decision of the Court of Appeal stating that she had submitted a waiver of the divorce request while maintaining her remaining requests for maintenance and had requested the court to open the pleading process to establish reconciliation. The court had failed to take the request and waiver into consideration and had provided the final rulings of the case. The Court of Cassation duly quashed the decision of the appeal court stating that the objection by the wife was valid. The contested ruling by the lower court had failed to take the wife’s request for reconciliation into consideration, which is an essential element that may change the opinion of the case. The court also noted that the wife made the request before the Court of Appeal set the date for its final ruling. Although the court has the authority to assess the seriousness of the request made, the court is obligated to consider the request and decide whether such request must be accepted or rejected. Consequently, the case was returned to the Court of Appeal for reconsideration.

In Conclusion, an important submission made by a litigant, that has the potential to sway the opinion of the court, must be taken into consideration by the court, before issuing its final decision.

Citation: Cassation Appeal No. 290 of 2023, Personal Status Cassation

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