An English judge has delivered an important and precedent-setting judgment in the family court that will have ramifications for non-Muslims living and working in Abu Dhabi.
Burgess Mee Family Law – led by partner Natalie Sutherland and assisted by senior associate Olive Gathoni and paralegal, now pupil barrister, Eno Elezi – represented the husband in the English court case of a couple residing in Abu Dhabi – the case is referred to as SA v FA.
The wife had issued a divorce petition in England citing both parties’ English domicile. The husband disagreed and challenged the wife’s petition, arguing that their domicile had changed to Abu Dhabi. He subsequently issued his own divorce petition in Abu Dhabi, write Sutherland and Gathoni.
The matter came before judge Hess who had to determine two issues: first, whether the English court had jurisdiction to deal with the wife’s application, and second, if it did, whether the new non-Muslim family court in Abu Dhabi provided a more appropriate forum to deal with the parties’ divorce and financial remedy application.
In December 2021, new personal status laws for non-Muslims were introduced in the Emirate of Abu Dhabi governing family matters such as marriage, divorce, financial matters, inheritance and arrangements for children. The non-Muslim family court was established to hear such cases.
Matter of jurisdiction
The availability of this new court, applying non-Sharia law for non-Muslim expats in Abu Dhabi, was significant in this case.
In his judgment in answer to the first question, judge Hess determined that both parties were domiciled in England, giving the English court jurisdiction to deal with the case. He then had to consider the forum question.
The wife’s legal team argued that the new court “remains embryonic” because there were as yet no reported cases to inform the English judge how the new laws would be interpreted in practice.
Further, they claimed that the English judge should be concerned that the only judge appointed to the court so far is a Muslim Emirati who may make determinations according to, or substantially influenced by, Sharia norms and that as such, the wife would not receive ‘substantial justice’.
Those arguments were rejected by the judge, who said: “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”.
He said he had “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”.
“Financial remedies’ systems widely differ and it would be wrong for me to conclude that only the English system gives ‘substantial justice’. 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 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.”
Non-Muslim expats living and working in Abu Dhabi contemplating divorce must now be mindful of the jurisdiction of the non-Muslim family court.
Whereas previously expats would default to issuing in England and Wales in order to avoid Sharia law, that is no longer the case with the introduction of the new personal status law for non-Muslims.
The judgment in SA v FA has opened up the possibility of expats having a choice of jurisdiction and where there is a dispute, it can no longer be assumed that an English court will agree that it is the most convenient forum where substantial justice can be obtained locally.
While this judgment is specific to the English courts, it is anticipated that courts in other jurisdictions will read it with interest.
This article was written for International Adviser by Natalie Sutherland, partner, and Olive Gathoni, senior associate, at Burgess Mee Family Law