today, we are talking about divorce under the UAE`s personal status law, where Repudiation is defined as the dissolution of the valid contract of marriage in the form legally prescribed. as Repudiation takes place verbally or in writing and, in case of inability, by an understandable sign.
And Repudiation takes place by the husband or his proxy, designated in a special power of Attorney or the wife if her husband gave her complete autonomy of herself. repudiator must be:
- of sound mind and have free choice.
- Repudiation done by a man of unsound mind due to a banned substance shall be considered a choice.
Repudiation of the wife may occur only if she is a party to a valid marriage and she is not within the waiting period (known as Idda).
moreover, 1. Divorce subject to a condition precedent to do or depart from something shall not be effective unless there is an intention to divorce.
- In the absence of an intention to divorce, there is no divorce in case of perjury to an oath.
- A divorce made verbally, in writing or by sign, whether repeated or in conjunction with a number, shall be construed to be once only.
- A divorce may not be contingent on the happening of a future event.
now, we will talk about types of divorce as there are two types of Repudiation either retractable or non-retractable:
- The retractable repudiation does not put an end to the marriage unless after the expiry of the waiting period (Idda).
- The non-retractable repudiation ends the marriage upon its occurrence. It may take one of the following two forms:
- Repudiation with the right to remarry: The divorcee may not return to the man who divorced her except after a new contract of marriage and a new dowry;
- Final and decisive repudiation: The divorcee may not return to the man who divorced her except after expiry of the waiting period (Idda) from another husband who had carnal knowledge of her under a valid marriage.
and every repudiation is retractable except the repudiation completing the third, the one occurring before sexual penetration and the one considered by law final and decisive. and Divorce occurs through a declaration made by the husband and recorded by the judge. If the divorce has taken place outside the court, it can be legally established before the court by evidence or avowal, and the divorce is attributed to the date of the declaration. Upon request of the concerned persons and after divorce, the competent judge issues an order fixing the woman’s alimony during her waiting period as well as the alimony of the children, determine the person who has the right to foster the child and the right to visit the fostered child. This order is considered as being of summary execution by force of law and the prejudiced party may appeal this order by all means of appeal prescribed by law. and the husband is entitled to get back his divorcee, should the divorce be revocable and as long as she is within her waiting period. His right thereto is not forfeited even if surrendered. Should the divorcee’s waiting period expire, she may return to him by a new contract without the permission of her tutor, if he refuses to give her in marriage to him, provided that her first marriage from him has been concluded with the tutor’s consent or by order of the court. Getting back a divorcee occurs verbally, in writing and, where impossible, by a sign as well as by action with intent and Retrieval shall be recorded and the wife should be informed of it during her waiting period.
firstly: the separation occurs by the decision of the judge for accounts of defects:
article 112 of the UAE`s personal status law stipulates that:
- Should one of the spouses find in the other a deep-rooted repulsive or harmful defect such as insanity and leprosy, or those preventing sexual pleasure such as obstruction of genital canals or similar defects, he may ask for the rescission of the marriage whether this flaw existed before the contract or occurred later.
- His right to rescission shall be forfeited if he had knowledge of the defect before the contract or accepted it expressly or impliedly thereafter.
- However, the wife’s right to claim rescission on grounds of defects preventing sexual pleasure shall not, under any circumstance, be forfeited.
- The court shall examine, in chambers, the case of a rescission of marriage on grounds of sexual defects.
Should the defects mentioned in Article (112) of this Law be not susceptible to disappear, the court shall rescind the marriage immediately and without delay.
Where it is likely to disappear, the court shall adjourn the case for an adequate period, not exceeding one year, and in case it does not disappear during this period and the party claiming rescission insists, the court shall rescind the marriage.
Each of the two spouses is entitled to ask for separation in the following instances:
1) In the case of deceit perpetrated by the other spouse or with his knowledge inducing to the formation of the marriage contract. Intentional silence about a fact is deceit if it is established that the deceived party would not have concluded the marriage contract had he been aware of such fact.
2) If it is established by a medical report the sterility of the other spouse, after a marriage that lasted five years and after medical treatment, provided that the claimant has no children and that he is not more than forty years of age.
3) If the other party is condemned for adultery or a similar offense.
4) Where it is established that the other spouse contracted a contagious fatal disease such as Aids or similar, so if it is feared that this disease is contracted by the other spouse or their descendants, the judge must order their separation.
A competent medical committee is used to identify defects for which differentiation is required.
Differentiation based on one of the above-mentioned clauses is considered to be an annulment of the marriage contract.
secondly: Separation Due to Non-Payment of the Due Dowry:
article 16 of the UAE`s personal status law stipulates that:
- The wife in a non-consummated marriage shall be adjudged separation due to non-payment by her husband of the due dowry, in the following instances:
- a) If the husband has no apparent funds from which the dowry could be drawn;
- b) If the husband is manifestly insolvent or of unknown status and the period fixed by the judge for payment of her dowry has expired without payment.
- The wife shall not, after consummation of the marriage, be adjudged separation for non-payment of her due dowry which shall remain a debt on her husband.
thirdly: what are the cases of Separation Due to Prejudice and Discordance?
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 is impossible. The right of each of the spouses thereto shall not be forfeited unless their reconciliation is established. and under Article (16) of this Law, the Family Orientation Committee shall endeavor the reconciliation of the two spouses and, in case of failure, the judge shall propose reconciliation to the spouses. If this reconciliation is not possible and the prejudice is established, the judge shall order divorce. however, In case the prejudice is not established, the discordance is still continuing between the spouses and the Family Orientation Committee as well as the judge was not successful in reconciling them, the judge shall issue a judgment appointing two arbitrators from among their parents, if possible, after asking each of the spouses to nominate, in the next hearing at most, his arbitrator from among his parents, otherwise from those who have the experience and ability to reconcile. Should one of the spouses procrastinate in nominating his arbitrator or abstain from attending this hearing, the judgment shall not be subject to any cassation. 2. The judgment appointing the two arbitrators must include the starting and closing dates of their assignment provided it does not exceed ninety days extendable by a decision of the court. The court shall notify the two arbitrators and the parties to the litigation of the judgment appointing the arbitrators and shall ask each of them to take the oath that he will perform his assignment with equity and probity. The two arbitrators have to find out the reasons for discordance and deploy efforts to reconcile between the spouses, Abstention from any of the spouses to attend the arbitration sitting, whenever notified of the date fixed for it, or the next sittings if set at different intervals, shall not affect the progress of the arbitrators work.
what happened in case the arbitrators fail to reconcile the spouses?
1) Should the offense be entirely from the husband’s part and the wife, or both parties are claiming separation, the arbitrators shall decide a non-retractable divorce without prejudice to the rights of the wife resulting from marriage and divorce.
2) In case the offense is entirely from the wife’s part, the arbitrators shall decide divorce for a consideration deemed adequate by them and payable by the wife.
3) Where both parties participated in the offense, the arbitrators shall decide separation without consideration or with one in proportion to each one’s share in the offense.
4) If the case is not clear as to who is the offender among them and if the husband is the claimant, the arbitrators shall recommend dismissal of his case; but if the wife or both of them are claiming separation, the arbitrators shall decide separation between them without consideration.
The arbitrators shall submit to the judge their reasoned decision that shall include the extent to which each of the spouses offended the other. and the judge shall render his judgment under the decision reached by the arbitrators if they agreed, otherwise, he shall appoint others or join to them a third as the umpire. The court shall ask the arbitrator or the umpire to take an oath that he will perform his duties with equity and probity.
In the case of divorce due to prejudice, the prejudice shall be established by the legal means of proof and by the court judgments rendered against one of the spouses.
The hearsay testimony is accepted if the witness explained, or it was understood from his statement that prejudice is widespread in the spouses’ life environment as decided by the court.
A hearsay testimony to negate the prejudice is not accepted.
The testimony of a male or female witness, except the testimony of an ascendant against a descendant or vice-versa, shall be accepted if the witness fulfills the conditions set forth by law for testimonial evidence.
Where the wife asks for divorce, before consummation of marriage or legal privacy, and she deposited the amount received as dowry, the gifts obtained and the amount spent by the husband because of marriage, but the husband abstained from doing so and in case the judge did not succeed in reconciling them, he shall order separation against consideration (Khul’).
fourthly: what are the cases of separation for Abstention from Support?
If the present husband abstains from supporting his wife and he does not have apparent funds from which he can pay, within a short time, the due alimony, the wife may ask separation. Should he allege to be insolvent but with no evidence as to his allegation, the judge shall order immediate divorce. If he keeps silent as to his being solvent or insolvent and insists on non-support, even if there is evidence of his insolvency, the judge shall grant him a respite of not more than a month after which, if he does not comply with his duty of support, the judge shall order divorce.
and we distinguish between two cases:
- In case the husband is absent in a known place:
If he has apparent funds, the alimony judgment shall be enforced on these funds.
Where he has no apparent funds, the judge shall warn him and grant him a respite not in excess of one month to which shall be added the prescribed period of distance and, in case he does not execute his duty of support or does not bring the alimony, the judge shall order divorce after expiry of the respite.
- If he is absent in an unknown place, in a place difficult to reach or missing and there is also evidence that he has no funds from which alimony could be withdrawn, the judge shall order divorce. and the husband may avoid divorce by submitting evidence of his solvency and his ability to pay the alimony. In this case, the judge shall grant him the respite prescribed in Article (125) of this Law.
The husband may retrieve his wife, while she still is in her waiting period, if there is evidence of his solvency and he shows his readiness to support his wife by paying the usual alimony, otherwise the retrieval is not valid.
and if the lawsuit for non-support is brought to court more than twice and it is established to the court the non-support in each and the wife asks divorce for non-support, the judge shall order a non-retractable divorce.
fifthly: Separation Due to Absence and Disappearance:
The wife is entitled to claim a judicial divorce due to the absence of her husband who has a known domicile or residence even though he has funds from which alimony can be drawn. She will get a judgment in satisfaction of her claim only after warning him: either to reside with her or have her move to live with him or divorce her and provided he is given a delay of not more than one year. and the wife of the disappeared, whose residence is unknown, is entitled to ask for a judicial divorce and she will be granted relief only after investigation and search for him and the lapse of one year as of the date of filing the claim.
sixthly: Separation for Imprisonment:
- The wife of the incarcerated, who is condemned by a decisive judgment to a penalty restraining his liberty for a period of three years or above, is entitled to ask the court, after the lapse of one year of his imprisonment, to divorce him irreversibly even though he has funds from which she can spend.
- Where the wife is also incarcerated but has been freed alone, she may ask for separation, after the lapse of one year of her release, under the same conditions mentioned in Clause 1 of this Article.
- In both the preceding instances, judgment for the wife is conditioned upon the non-release of the husband during the examination of the case and that the remaining period of his incarceration is not less than six months.
seventhly Separation for “Ila'” and “Zihar”:
what is the meaning of Ila? when husband sware to ALLAH not to have sexual relations with his wife for four months or more, As saying to the wife: I swear to Allah that I will not have sexual relations for five months or forever and like he swore to Allah or says: I swear to ALLAH that I will give a charity of 10000 dirhams if I have sexual relations with my wife..
what is the meaning of Zihar: Husband takes an oath and compare his wife with a woman of his female kin who is prohibited to be married with: as if he said to his wife: you are sexually prohibited to me as my mother, my sister or my mother in law.
The wife is entitled to divorce on grounds of “Zihar”, abandonment or Ila since her status is suspended neither she is a wife and has the marital right nor is non-divorced, Allah will provide abundance for her from his all- reaching bounty.
The judge shall warn the husband to expiate from “Zihar” within four months from taking the oath. Should he refuse without giving a reason, the judge shall order a non-retractable divorce.
is it permissible to file a summary lawsuit demanding alimony?
It is not permissible to file a summary case for alimony, but the right way is to file a substantive legal action requesting alimony during the hearing.
In examining the divorce case, the judge shall decide which provisional measures he deems appropriate to take to secure alimony for the wife and the children and all that relates to the fostering and visiting of children upon request of any of the spouses.