In the NatWest "Quality of Life" index, the UAE and Dubai are ranked second only to Singapore, outranking all other typical expatriate locations such as Australia, New Zealand and Spain. There are a number of good reasons for this, and it isn't all about beach parties and sunshine. Perhaps it is the quality of life, or just a general sense of adventure, that has resulted in 240,000 British nationals currently living in Dubai, including the writer of this article, with this number increasing all the time.
Consequently, the interaction between UK family law and Dubai is becoming increasingly relevant. There is something about the sunshine and lifestyle that leads those expatriated to Dubai to consider the benefits of consulting a family lawyer on a somewhat more regular basis than normal. Dubai has been mentioned more in the last three years' family law reports than ever before. It was in 2001 that Thorpe LJ in Al Habtoor v Fotheringham [2001] 1 FLR 951 referred to the 'particularly close historical connection' that the UK has with the UAE, was described therein as a 'friendly foreign state' and 'orders issued by the Emirates are entitled to the regard which we would expect the courts of the Emirates to have for our orders'.
It was only a matter of time before the divorce process in Dubai came under some scrutiny in the English Courts.
It is a question that those advising in Dubai come across regularly: whether a client should pursue a divorce in the UAE rather than the UK? Whilst a jurisdiction race wouldn't ensue per se as the European principle of lis pendens via Article 12 of the EU Maintenance Regulation would not apply, nevertheless there remains good reason for a divorcing party to be the first to start proceedings and to try to secure their choice of jurisdiction.
A forum conveniens argument between the UK and the UAE would be an interesting intellectual exercise but is likely to be informed by the facts of the case and the specific orders being sought. There is within UAE financial remedies law a demonstration of the law of unintended consequences, as the UAE remains one of the most pro-woman jurisdictions in the world where the wife is the richer party. An order will not be made for the wife to pay an amount to the husband, irrespective of the care given to the children. However, conversely, a more impoverished wife will do worse in the UAE than in the UK, largely because the UAE courts' approach is needs driven and does not extend to an application of the sharing principle. Dubai is also one of those jurisdictions, given the nature and limitations of the court's powers in financial remedies, where it is hard to escape the prospect of a Part III, MFPA 1984 claim: the more unfair the outcome, the fewer assets untouched by the regime, the more likely one will be to obtain permission under that statute.
In answering whether a client should pursue a divorce in the UAE, one is therefore concerned with both the likely financial award following that divorce (and consequential impact upon a forum conveniens argument) but also whether the divorce procedure in the UAE is likely to be given recognition in England. Following the decision of Mostyn J in Lachaux v Lachaux [2017] EWHC 385 those advising clients as to the possible advantages and disadvantages of a divorce in Dubai now have a much clearer picture on this question.
The divorce law in the UAE is split between those applicable to Muslims and those pertaining to non-Muslims. The creation of the Federal Law No. 28 of 2005 on Personal Status, Article 1(2) created a regime applicable to non-Muslim citizens of the UAE rendering the common misunderstanding that only Sharia Law which is applied. Article 2(1) provides that 'the principles and rules of the Muslim doctrine shall be consulted' when 'understanding, interpreting or consulting the legislative provisions' of the law but that remains a long way from simply only applying Sharia Law, as a form of secular divorce is provided for within Article 117.
In Lachaux this secular divorce process was found to be 'not dissimilar to our own fault based divorce ground found in section 1(2)(b), Matrimonial Causes Act 1973' by Mostyn J (para 14). Although, it should be noted in passing that it remains to be seen how much longer this fault based proximity between the UAE and UK remains, with Resolution's compelling and persuasive campaign for divorce law to be reformed to a no-fault system.
Mostyn J astutely takes the word 'prejudice' within the Article to 'mean the same as behaviour as it used in our own Matrimonial Causes Act' (para 14). With this substitution, it is clear why his Lordship found there to be such proximity, Article 117 provides:
"Each of the two spouses is entitled to ask for divorce due to prejudice that would make the continuity of the friendly companionship between them impossible. The right of each of the spouses thereto shall not be forfeited unless their reconciliation is established."
This has clear echoes of proving irretrievable breakdown by proving one of the five facts, as per the UK system.
One of the questions posed by the Lachaux case pertained to the status of the Dubai divorce and whether it was 'entitled to be recognised' (para 22). If it was not then the decrees nisi and absolute were to be set aside, which his Lordship was in no doubt he had the power to do. Mostyn J stated that where 'there was no question as to the court's power to entertain the divorce suit a party cannot appeal a decree absolute to the Court of Appeal if he or she had time and opportunity to appeal against the preceding decree nisi' however conversely in the present situation the restriction on appealing a decree absolute set out in section 18, Senior Courts Act 1981 'has nothing to do with setting aside a decree which is null and void'.
The legal framework which exists when considering whether a divorce is entitled to recognition is determined by Part II, Family Law Act 1986. Section 46(1)(a) provides that the validity of a divorce will be recognised if the divorce was 'effective under the law of the country in which it was obtained' and that (by section 46(1)(b)) at the relevant date either party was habitually resident or domiciled or a national of that country.
Section 48 sets out the 'proof of facts' required to decide 'whether an overseas divorce ... is entitled to recognition by virtue of section 46'. Effectively this means that, 'conclusive evidence' will be deemed to have been provided if 'both parties to the marriage took part in the proceedings' and 'sufficient proof unless the contrary is shown'.
Even if one satisfies the section 46 and 48 tests, it is still possible to challenge the validity of the divorce under section 51(3). Mostyn J describes it as 'an open question' as to whether section 48 applies to an enquiry under section 51 and indicates that in his opinion it does not 'as a refusal of recognition would be pursuant to section 51 and not section 46' and 'by its terms section 48 is limited to recognitions'. Section 51 provides for a challenge to the validity (accordingly, therefore, separately to section 46) where a divorce was obtained without steps having been taken to give notice of the proceedings to the other party (section 51(3)(a)(i)) or where there are other reasons for the other party to the marriage not being given sufficient opportunity to take part in the proceedings (section 51(3)(a)(ii)).
It was not contended in Lachaux that the divorce was not effective in Dubai and it therefore satisfied the sections 46 and 48 aspect of the enquiry and so 'the divorce was entitled to be recognised, unless the applicant can prove a case under section 51(3)' (para 28).
Mostyn J referred to a 'general reluctance' in the case law to bring about a 'limping marriage... where the parties are married in one place but divorced in another' but didn't go as far as to say that this was a general principle: he found the enquiry to be 'evaluative rather than discretionary' (para 29). The general principle His Lordship preferred being that if the enquiry leads to the conclusion that notice was not given but was reasonable to have been given then recognition should be refused (Ibid). Refusal will equally follow where an opportunity to participate was also denied unduly. It is also worth noting that following Golubovich v Golubovich [2010] 2 FLR 1614, a breach of public policy will also lead to refusal if proved under section 51(3)(c)
Following a lengthy judgment on the facts of the case, Mostyn J found that the applicant 'had knowledge of the proceedings in Dubai and a full opportunity to participate in them' (para 143). He specifically found that the wife had participated in them. He found that 'the proceedings were fair' and the Dubai Court gave the Applicant 'much latitude' (Ibid). The Applicant did not 'even begin to scratch the surface of demonstrating that this UAE divorce is contrary to English and Welsh public policy'.
Interestingly, Mostyn J went further and stated that: 'on the contrary, I am entirely satisfied that the divorce ground under Article 117 is entirely consistent with our public policy as it is virtually the same as the ground for divorce that is principally used here'.
The Dubai divorce was therefore recognised as valid and Mostyn J declined to refuse recognition of it under section 51(3) and he set aside the English decrees nisi and absolute as void.
This is an important decision for those working with family law cases in the UAE and the UK. It is submitted that it is a direct and specific endorsement of the UAE divorce system, the validity of which must now be hard to challenge on public policy grounds following the decision and, in fact, was found specifically to be very similar to the UK. When advising clients as to whether to proceed in the UAE or the UK, one question appears to have been properly and conclusively answered; focus can be concentrated instead in that decision on the different financial outcomes and potential forum conveniens arguments which will inform which jurisdiction is preferable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
