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Case Summary: Wife seeks fault-based divorce, custody of her minor daughters and related maintenance charges from her husband. The wife claims that their marriage has been in a state of ongoing deterioration, culminating in the husband leaving her and their children by departing from their marital home, over a year ago, pursuant to an agreement between the couple. The husband is an alcoholic and has illicit relations with women. He has not shown any inclination in providing for the family, forcing the wife to bear expenses including the rent for the marital home. The wife also produced witnesses who corroborated the claims of the wife regarding the husband’s alcoholism and lack of financial contribution from him. As the husband did not respond to the summons of the court, the court passed the following ex-parte decision in the matter.
First Instance Court (“CFI”) findings: As there was no request for the application of the parties’ personal laws, the laws of UAE were applied to the case. Pursuant to the wife’s claim that the husband had abandoned her and ceased providing financially for the family, the court cited article 19 of the UAE Federal Law No. 28 of 2005, regarding the purpose of marriage and article 118 that lists out the essentials for a fault-based divorce. The court observed that the wife’s claims, confirmed by the witnesses produced on her behalf, qualified her to be granted a fault-based divorce. The court also granted custody of the children to the wife as the latter were within the age of mother’s custody as per article 146, and the court deemed that it was in the best interest of the children.
Regarding the wife’s request for child support for the two daughters, the court stated that as per articles 63 and 78 of the personal status law, alimony of a small child, which includes necessities like food, clothing, shelter, medical care, etc., is the responsibility of the father. Furthermore, as per article 86 of the law, child’s alimony may be sought for backdated expenses of up to a year from the date of submitting such claims in court. Consequently, the court ruled to charge the husband to pay child support for both children. The court also ruled for the wife to receive custody charges, residential allowance and allowances towards utilities. However, the court rejected the wife’s request for furniture allowance due to the lack of evidence that the residence required furnishing. Requests for allowances for tuition and domestic servant was also rejected by the court, even though it forms part of the obligation of the father towards his minor children, as the wife had failed to provide evidence that the husband was financially capable of undertaking such expenses.
Regarding the reimbursement of residential rent undertaken by the wife during the course of their marriage, the court stated that as per articles 63 and 67, alimony, which includes various elements of maintenance is an obligation on the husband and abstaining from providing them makes it a debt on him. However, as the couple was non-Muslim, the obligations on the husband vary due to the difference in the rights of the husband, from that of a Muslim man. Non-Muslim couples are equal in dependency since the husband cannot marry someone else as long as she is under the bond of marriage, making the husband dependent on the wife and restricted to her. Therefore, a husband is obligated to cover the expenses of the wife if she is in need or if her own funds are insufficient for her maintenance. As the wife had admitted to the court that she was working and had an income, the court ruled that the husband will not be liable to reimburse the rent paid by the wife, after he left the marital home, but he will be liable to pay half the rent for the marital residence for when he was living with the family.
The court also rejected the wife’s request for temporary child support until the disposal of the case, as it had already ruled on the matter, and the request for temporary alimony for the wife was rejected as she had not specifically demanded for alimony.
Court of Appeal findings: The husband and the wife appealed the decision of the court of first instance. The court rejected the husband’s request for the postponement of the hearing due to previously granting more than one opportunity to respond during case deliberation. The wife appealed the decision on the grounds of inadequacy of the awarded amounts, granting only part of the reimbursement of backdated expense towards rent and declining to charge the husband to cover tuition fees and the domestic worker’s salary, citing his purported financial incapacity.
The court ruled that it is obligatory for the father to pay the tuition of his children and the burden to demonstrate financial incapacity lies on him as he is the financially responsible party. The court also observed that the father was affluent, evidenced by the fact that he could afford legal representation while residing in Dubai. Consequently, the court charged the husband to pay the tuition fee and increased all the maintenance amounts to be paid by him. However, the court upheld the lower court’s decision to charge the husband a part of the reimbursement amount sought by the wife. The court explained that as per the Maliki school, the expenditure made by the wife is considered to be voluntary unless she proves that she intended to seek reimbursement of the same from her husband. In this case, the wife had admitted that after the husband left the marital house, she undertook the payment of rent without any intention of returning to the husband. Nevertheless, the court rejected the lower court’s reasoning in the matter, stating that it is prohibited to distinguish between Muslims and non-Muslims as long as neither party adheres to the application of their foreign nationality law over national law. The court also upheld the First Instance Court’s decision to reject the allowances towards a domestic worker, stating that the wife had failed to prove the necessity of the domestic worker for his daughters.
Court of Cassation findings: the decision of the appeal court was further appealed by the husband on two grounds. Firstly, the husband stated that he filed the cassation appeal after the passage of Federal Law No. 41 of 2022 concerning Civil Personal Status, necessitating the direct application of this law on the case, as the final judgement was still pending. As per the new law, the maintenance of the child is the equal responsibility of both parents. The court rejected his contention stating that the new law came into effect after the issuance of the decision by the appeal court. Moreover, his appeal did not include any contention regarding the adequacy of the alimony ordered initially or the subsequent modifications made by the Court of Appeal in response to the Appeal filed by the Respondent.
The husband also contended that the appeal court violated his right to defense and did not grant him adequate time to study and prepare his defense and thus the decision must be nullified. The court stated that the validity of ruling takes precedence over considerations of public policy. It is also established that there is no ruling without a request. As per article 167 of the Civil Procedure Law of 2022, filing an appeal and transferring the original case to the appeal court in its original state prior to the issuance of the appealed ruling only applies to matters that were appealed. Therefore, if the parties did not appeal against the rulings made by the Court of First Instance, its ruling gains legal authority against them and prevents the parties to the case from reopening the debate on the issue settled by the ruling, even if new legal or factual evidence arises that was not previously raised or considered by the ruling. As the husband had failed to challenge the ruling of the Court of First Instance either through primary or subsidiary appeal methods, the ruling of the first instance court hold legal authority against him and the Appellant cannot argue against them, even with legal or factual evidence, before this Court. The court thus dismissed the cassation.
In Conclusion, if a decision issued by the court of first instance is not appealed by a party to the case, the decision will attain legal force and the party cannot reopen the debate on the issue as per the principles of res judicata, even with new legal or factual evidence.
Cassation Appeal No. 74 of 2023, Personal Status
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