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Case Summary:Plaintiff filed a case for child custody, child support and related charges, against her ex-husband who divorced her a year ago. The plaintiff states that she is the custodian of the child and the defendant is wealthy, earning well and owning properties. The plaintiff resides in the marital house which she claims is unsuitable for her and the child. She requests the court to charge the defendant to provide a different house. The defendant contends that the case is invalid as per res judicata, as the plaintiff had filed a case one year ago in the same subject matter. He also states that he is already paying maintenance charges to the wife and he will be unable to pay more due to the limitation in his finances and his other obligations.
First Instance Court (“CFI”) findings: As one of the parties is a UAE national, the court applied the UAE laws to the case. The court ruled in favor of the defendant on the matter of res judicata regarding transportation allowance, furniture allowance and allowance towards a domestic worker, stating that these subjects were already decided in the previous case filed by the plaintiff. Remaining requests were accepted for consideration. Regarding the plaintiff’s request for child custody, the court stated that as per article 146 of Federal decree Law No 28 of 2005, fostering a child is the right of a mother. It was also established by judgements of the Court of Cassation that while choosing a custodian, the child’s best interest must be given priority. As the child here was still in the age of mother’s custody, and as the father had not raised any objections regarding the mother’s competence to be the custodian if the child, the court ruled in favor of the plaintiff and granted her custody over the child.
The request for maintenance or child support was considered by the court as per Articles 63 and 78 of the personal status law which lists out the various necessities that come under maintenance, and the conditions that determined that quantum of maintenance. Accordingly, as the father is obligated to take up the financial responsibility, and provide for the various necessities of a minor child who has no income for himself, the court ruled in favor of the plaintiff to charge the defendant to provide maintenance for the child. the court also charged the husband to provide a custody fee for the wife.
Although the father is responsible for providing custody residence as per article 148, the court ruled that the plaintiff’s request for a different custodial residence than the one that was currently being paid for by the defendant was invalid. Regarding the plaintiff’s request for allowances towards Eid clothes for her son, the court ruled that as per the cassation court’s ruling, although the necessities are already included in the law, custom may govern other consequences of the maintenance amount, provided that it does not violate the sharia principles, and the law. Accordingly, the court ruled to charge the defendant with the payment of allowance towards Eid clothes. The plaintiff’s request for air tickets to travel to Morocco was rejected by the court as that did not form part of the alimony obligated on the father. Her request to charge the defendant for renewal of visa of the child, and the reimbursement of the expenses borne by her was also rejected by the court as the plaintiff filed her request without stating the value of the costs or providing any proof for it.
Regarding the plaintiff’s request that the passport and the identity documents of the child must be handed to her, the court ruled that s per article 157 of the personal status law, the father had the right to hold the passport of the child while the mother keeps the identity card of the child. thus, the defendant was charged to handover the identity documents and the family book of the child, to the plaintiff.
Court of Appeal findings: Both the plaintiff and the defendant filed an appeal against the decision issued by the court of first instance.
The child support and other charges to be paid by the defendant was appealed by both parties on the basis of insufficiency and exaggeration respectively. The court stated that the quantum of child support is determined on the basis of the financial status of the provider and the economic status of the receiver, provided that the amount is not below the sufficiency level. As the court was satisfied that the defendant was financially well capable, it ruled to raise the child support, custody charges and the Eid clothes allowance previously ruled by the Court of first instance. The court re-ruled the decision regarding residential allowance, charging the defendant to provide a higher allowance towards rent to enable the plaintiff and the child to move to a more comfortable residence as the previous residence posed health threats for the minor child.
The appeal court also rejected the decision regarding res judicata on certain subject matters stating that the previous case was related to the allowances for the plaintiff, such as alimony, marriage fee, deferred dowry, house and driver for the wife etc. on the other hand, the current suit is regarding the maintenance for the child. Consequently, the court ruled to charge the defendant to provide transportation allowance for the child. However, the plaintiff’s request for maid’s wages was rejected as the court observed that the plaintiff was housewife with only one child, and therefore did not require a maid.
Court of Cassation findings: the plaintiff appealed the decision of the Appeal court and submitted certain documents to support her appeal. Documents that were newly produced before the court was rejected as it is not permissible to produce documents that were not previously submitted before the trial court. The plaintiff claimed that the lower courts issued all the decisions for maintenance amount from the date of the ruling. The plaintiff stated that she is liable to be paid backdated expenses as well as the defendant had not provided for the child from its birth. This contention was rejected as the plaintiff had failed to specify any date in her claim before the trial court.
The plaintiff’s claim that a one-time allowance for furnishing is incorrect and she is liable to obtain a periodic allowance for the same was also rejected by the court. The court stated that it is not permissible to rule on future rights, and therefore the replacement of the furniture cannot be made unless it is proven that it is damaged or destroyed by use.
The plaintiff also faulted the decision regarding transportation allowance as she had sought a car and a female driver but was only granted a small allowance towards transportation. This was also rejected by the court as the appealed ruling was valid and not in violation of any law.
The plaintiff also appealed the decision which rejected her claim towards allowances for a domestic worker. The court stated that for a child in custody to be eligible for a maid’s wages, the child in custody must be at an age where he needs service and the father must be well-off. As the case is devoid of anything indicating the Defendant’s financial situation, the request is rejected. Additionally, the court was not satisfied that a maid’s service is necessary in this case which means the absence of one of the conditions for entitlement to the maid’s wages.
The plaintiff stated that the child support awarded by the court was a small amount. This contention was also rejected as the court stated that as per article 63, the quantum of maintenance awarded is to be decided after taking into consideration the financial situation of the provider and the economic status of the receiver. It is a matter of fact, to be determined based on the facts and circumstances of the case, as per the discretionary power of the trial court, as long as it bases its ruling on justifiable reasons that have their origin established in the papers. Consequently, the court rejected these contentions and dismissed the cassation.
In Conclusion, the Court of Cassation upheld the lower courts' decisions, dismissed the appeals and confirmed the adjusted amounts for child support and related expenses based on the father's financial capacity and the documented needs of the child.
The Court of cassation has established that the trial court must adhere to the limits of the requests submitted by the parties, while deciding on the merits of the case, and must not rule for the parties anything beyond what was requested by them. Additionally, new requests cannot be made before the Appeal court or the court of cassation, if those requests were not made before the trial court.
Cassation No. 30 of 2023, Personal Status
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