6 October 2022
Judgment in SA vs FA is highly significant for divorcing UAE-based expats
Burgess Mee Family Law has advised on a reported precedent-setting forum case that impacts divorcing expats based in the UAE (see link to judgment, which has just been published).
The Burgess Mee team, led by partner Natalie Sutherland and assisted by senior associate Olive Gathoni and paralegal, now pupil barrister, Eno Elezi, advised an Abu Dhabi-based British expat whose wife had issued divorce proceedings in England and Wales. Together with counsel, Lily Mottahedan of 1 Hare Court, they successfully argued that the new Abu Dhabi Family Court for Non-Muslims was the most convenient forum for hearing the divorce.
In 2021, Abu Dhabi introduced a new law to regulate non-Muslim family matters under civil and non-religious rules and regulations (not Sharia law), establishing the Abu Dhabi Family Court for Non-Muslims.
In this case of SA vs FA, a South African wife married to a British expat, who had lived in the UAE for all of the 14 years of their marriage, issued her divorce petition in England and Wales, asserting that both she and the husband were domiciled there. The husband defended the petition for lack of jurisdiction, claiming that neither were domiciled in England Wales at the date of the petition and asserting that the Abu Dhabi court was the more convenient forum.
Whilst HHJ Hess found that both parties were domiciled in England and Wales and therefore the courts here would have jurisdiction, he held that the new Abu Dhabi Family Court for Non-Muslims was the more convenient forum and therefore stayed the wife’s English divorce petition.
The wife’s team had argued that the Abu Dhabi court was “embryonic”, with no reported case law to inform how the new UAE statutory provisions would be interpreted, and that the new court would not therefore provide “substantial justice”. Further, they argued that as the only currently appointed judge of the court is a Muslim Emirati, the English Judge should be concerned that any judgment would be influenced by Sharia norms.
HHJ Hess rejected those arguments, saying: “It seems to me that the new court has been set up with a view to giving assurance to Non-Muslims living in the UAE that, if they do become divorced, they will be dealt with in a way which is commensurate with norms of Non-Muslim countries. I have no reason not to assume that any judge of the new court, whatever his faith, would deal with any case according to the statutory principles”.
He continued: “It may be that the wife would have a better outcome in the English courts than under the UAE courts (though even this is not certain), but even if this is the case, it would not in my view be correct for me to regard this factor as determinative, nor should I see this as a reason for concluding that the wife would not receive ‘substantial justice’ in the courts of the UAE.”
Natalie Sutherland commented:
“This case is a significant decision for any expats in the UAE going through a divorce. Whilst there may be jurisdiction to issue proceedings in England and Wales, the issue of forum will be highly significant and the new Non-Muslim Family Court cannot be ignored.”