Court Rules That The Marital Domicile Must Be In The Husband’s Place Of Residence, Unless The Marriage Contract Stipulates Otherwise

Case Summary: Wife files a case against the husband for maintenance for herself and her daughter, and the custody of the child. The wife states that the marriage between the two had been unpleasant from the beginning, due to constant absence of the husband in the marital home, or the husband returning home drunk during late hours of the night, subjecting the wife to verbal abuse, and not providing for the family in spite of the husband’s substantial income. The wife claims that as a result, she was forced to obtain financial assistance from her brother and family. She also states that the husband expelled her and their daughter from the marital domicile, forcing her to live with her brother until she travelled to her home country India. She then enrolled her daughter in a school and returned to the UAE.

The husband contends the claims made by the wife. He states that it was the wife who left the marital domicile after demanding a divorce from him. Disputes occurred between them as the wife would go out without his permission. He states that she did not reside with him in his residence for two years, choosing to stay with her brother. He also claims that the wife has instituted a domestic violence case against him and his family. Despite the wife’s actions, he has continued to provide for her and the child by transferring money to the wife’s Indian account, but do not want to bring her back to the UAE. He states the he is unaware of the wife’s employment status.

First Instance Court findings: As neither party requested the application of the personal laws of their home country, the UAE laws were applied to the case. The Court stated that although the dispute is to be governed by Federal Decree Law No. 41 of 2022, on Civil personal Status, as the question of domicile is not covered by the law, as per article 15, Law No. 28 of 2005 will apply for matters relating to residence and utility allowances. The court also stated that as per article 54 of the Personal Status Law, rights and duties of spouses include legal cohabitation, good treatment, and the right to enjoy each other, among other things. As per the admissions of the parties, the court concluded that the husband had provided a domicile which was abandoned by the wife due to the dispute between them and as she did not care about the husband’s request to stay in the house. This constitutes a breach of the conjugal obligations on her. The wife also did not seek to return to the conjugal residence to preserve the welfare of the family, but rather for the husband to pay for her residency and provide for her in the UAE without being bound by her marital obligations, using their daughter as a means to achieve what she seeks. Consequently, the court rejected the above requests. The court also observed that the child is required to be with the custodian to ensure proper care and welfare of the child, but she was currently not in the custody of the mother. The wife cannot argue that she left the child in India and traveled to the UAE to file her case, as remote litigation has become easier. Consequently, the court ruled to reject the wife’s request for custody.

Regarding maintenance and backdated expenses requested by the wife, the court stated that as per the civil status law, equality between man and woman is paramount. Article 9 of the law provides for maintenance to be given to the wife, post a divorce, subject to certain conditions. However, as per jurisprudence, in case of non-Muslims, if each spouse has an income sufficient to support itself, then there is no maintenance for either of them over the other. In the instant case, the husband failed to show that the wife has a source of income, and he admitted to continuing to provide for the wife. Moreover, the husband did not request that the wife’s request for alimony be dropped due to her abandoning the conjugal residence without legal justification. Consequently, the court charged the husband to pay a maintenance amount to the wife. However, the court did not provide for backdated expenses. The court also ruled that although both parties must equally contribute towards the maintenance of the child as per articles 4 and 9 of the Civil Status Law, the husband must pay child support and the tuition fee for the child, as he is the sole provider for the family. The court rejected the wife’s request for temporary maintenance.

Court of Appeal findings: The wife appealed the decision of the Court of First Instance stating that the court erred in its ruling to reject her request for domicile residence. The court stated that as per articles 54, 74 and 75 of the Personal Status Law, spouses have the right to enjoy each other, and must live in the conjugal domicile. As both parties acknowledged the dispute, and as the marital relationship still stand between them, the court quashed the previous ruling and re-ruled to charge the husband to provide the wife a conjugal domicile in his residence. The wife also faulted the ruling rejecting her request for custody of the child. Article 146 of the personal status law states that the mother will have the right to custody of a minor child whether the marriage is existent, or terminated. As there were no grounds to prevent the custody of the mother, the court re-ruled to grant the custody of the child to the mother.

The wife’s request that she be reimbursed the money spent towards the child’s school admission process was considered to be valid by the Appeal Court as the husband had implicitly consented to the child’s admission in the private school, and as he had been transferring money to the wife, for the child. However, the court ruled to reject the wife’s contention that the child support ruled by the lower court is insufficient. In the light of the difference in the value of currency and the cost of living between UAE and India where the child is currently domiciled, the court determined that the child support amount is sufficient for the ten-year-old child.

Court of Cassation findings: The ruling of the Appeal Court was contested by the husband. The husband faulted the ruling charging him to provide conjugal domicile to the wife, despite the fact that it was the wife who abandoned the marital residence in the first place. The court cited article 63, 74 and 75 of the Personal Status Law which obligates the husband to provide for the maintenance of the wife, and domicile is part of that maintenance. The marital residence must be in the husband’s place of residence, unless the marriage contract stipulates otherwise, to achieve cohabitation, kindness, and mercy between the couple. In the event of a dispute, the judge shall consider the interests of the family and its stability, so that it is able to play its role in raising children in a sound manner. The court also added that the ruling does not specify that the husband is required to provide a new domicile, or pay a rent allowance to the wife. The residence to be provided to the wife may be the same as the previous residence. Accordingly, the court ruled that the husband’s argument is invalid.

The husband also argued that the ruling to grant custody of the child to the mother was erroneous as the mother had proven to be careless in the affairs of the child by leaving the child in India to travel to the UAE to file a case even though she had already filed a case in India. The court rejected this argument stating that as per article 149, the mother has the right to custody of a minor child over the father and other members of the family. Additionally, the mother satisfies all the requirements for custodianship as stipulated in Article 143 and 144 of the Personal Status Law. As the contested ruling is justifiable, established by the documents, and leads to the conclusion reached by the Court of Cassation, the court ruled to reject the arguments put forth by the husband.

Regarding the husband’s argument that he is not liable to reimburse the expenses incurred by the wife while enrolling the daughter in school as one of the correspondences between the couple showed that he explicitly objected to the enrollment, the court stated that as per article 78 of the Personal Status Law, it is the obligation of the father to undertake the expense of the child who does not have a source of income. The conclusion reached by the Appeal court is justifiable and supported by the husband’s admission that he sends a monthly amount of money to the wife, including the tuition fee- which indicates that he consented and accepted the payment of the tuition fees. Accordingly, the court ruled to dismiss the cassation.

In conclusion, in the interest of the stability of the family, and to ensure cohabitation between the couple, the marital residence must be in the husband’s place of residence unless the marriage contract stipulates otherwise.

Cassation Appeal No. 249 of 2023, Personal Status Appeal

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