The Abu Dhabi Civil Family Court on the Law on Civil Marriage – Applicability to Foreign Muslims and the Complex Issue of International Jurisdiction

I. Introduction

In a previous post, I reported and commented on a decision rendered by the Abu Dhabi Supreme Court (hereinafter “ADSC”) in which the Court addressed the issue of the applicability of the Abu Dhabi Civil Marriage Law (Law No. 14/2021 of 7 November 2021 as subsequently amended) and its Procedural Regulation (Resolution No. 8/2022 of 1 February 2022) to foreign Muslims. In that case (Appeal No. 245/2024 of 29 April 2024), the ADSC overturned the lower courts’ decision, which had admitted jurisdiction in a divorce case and declared the dissolution of the marriage in application of the Civil Marriage Law and its Procedural Regulation. According to the ADSC, the lower courts erred in their decision since “it was judicially established…that [the parties] were Muslim”.

Soon after, a similar issue was addressed in a case brought before the Abu Dhabi Civil Family Court (hereinafter “ADCFC”). However, in its Judgment No. 86/2024 of 17 May 2024, the ADCFC took the opposite position by considering that the Civil Marriage Law applies “even if one or both parties are Muslims” as long as “the parties belong to a country that does not primarily apply Islamic Sharia in personal status”. Although the decision is rendered by a first instance court and is likely to be appealed to higher courts, and potentially overturned, the facts of the case and the ADCFC’s ruling provide interesting elements for further legal analysis and debate. This case also offers a valuable opportunity to introduce some aspects of the UAE/Abu Dhabi legal system of international jurisdiction in divorce matters.

II. Facts

The case involves a no-divorce and joint custody claim brought before the ADCFC by X (husband, a British citizen) against Y (wife, an Australian citizen) under the Abu Dhabi Civil Marriage Law. X and Y were married in Australia in 2019. The action was introduced on 19 March 2024.

Before the ADCFC, Y argued that the case should be dismissed because a previous judgment had been rendered on 28 December 2023 by the same court (ADCFC) on the same matter between the same parties.

Y also contested the jurisdiction of the ADCFC on three grounds:

The ADCFC lacked territorial jurisdiction, as Y resides and works in Dubai, has no connection with Abu Dhabi and X presented a sham lease contract of an appartement located in Abu Dhabi in order to establish the jurisdiction of Abu Dhabi courts. (In its judgment, the ADFCF refers to the contract dated 7 December 2023).
The ADCFC lacked subject-matter jurisdiction, as the parties are Muslims
The ADCFC lacked international jurisdiction, as the parties had agreed in a pre-nuptial agreement to confer jurisdiction to the English courts[1] over any dispute arising from the marriage.

Alternatively, Y requested the dismissal or the stay of the proceeding on the ground that a divorce case was pending before the English courts.

III. The Ruling

Based on the following grounds, the ADCFC rejected all the arguments raised by Y, assumed jurisdiction over the case, declared the dissolution of the marriage, and awarded joint custody to the parents:[2]

Regarding Y’s plea to dismiss the case on the ground that a prior ruling of the ADCFC had been rendered on the matter, a review of the ruling revealed that the case had been dismissed on of jurisdictional grounds, therefore, the ruling was procedural and did not have res judicata effect.

Regarding the challenges to the court’s jurisdiction – whether subject matter, territorial, or international – [since] there is no divorce judgment from X’s country (the UK) and X has been resident in Abu Dhabi, as evidenced by the submitted lease contract which shows that X rented an appartement located in the Emirate, Abu Dahbi courts have jurisdiction.[3] Accordingly, the dispute falls under the Abu Dhabi Law on Civil Marriage even if one or both parties are Muslims, since the States to which the parties belong do not primarily apply Islamic Sharia in personal status matters according to Article 5 of the 2022 Procedural Regulation (though X has insisted in his memorandums that he was not a Muslim.)

Furthermore, regarding the request to stay the proceeding until a decision in the case pending before the English courts is rendered, since the court has determined that it has jurisdiction on the ground that X’s residence in Abu Dhabi, the request should be rejected.

IV. Comments

Two main issues deserve to be particularly highlighted here. The first concerns the applicability of the Civil Marriage Law and its Procedural Regulation. The second concerns the jurisdiction of the ADCFC.

1. The applicability of the Civil Marriage Law to foreign Muslims

The case commented on here has been widely hailed as “significant”, “landmark” and even “historical” judgment because it confirmed the applicability of the Civil Marriage Law to disputes involving foreign Muslims.[4] However, it is important to note that this is not the first case in which the ADCFC has ruled in this manner. This is particularly the case in the court’s judgment No. 267/2023 of 12 December 2023. The judgment was later confirmed by the Abu Dhabi Court of Appeal’s ruling No. 31/2024 of 29 January 2024 but subsequently overturned by the aforementioned ADSC’s decision reported here.[5] It is worth recalling that, in this particular case, the ADSC clearly stated that the Civil Marriage Law does not apply to foreign Muslims irrespective of their origins. However, as suggested in this case’s note, there are serious doubts about the correctness of the Supreme Court’s interpretation and application the Civil Marriage Law and its Procedural Regulation.

From this perspective, by ruling as it did, the ADCFC gives the impression that it maintains its position in direct opposition to the ADSC. However, one should not lose sight of the fact that Abu Dhabi (and the UAE in general) operates under a civil law system where the doctrine of “precedents” is not recognized.[6] Thus, the decision of the Supreme Court can serve as persuasive authority that lower courts may consider in their judgments, but it is not binding on subsequent similar cases.[7] In any case, by affirming that Civil Marriage Law also applies even if one or both parties are Muslims as long as they belong to a country whose personal status law is not primarily based on Islamic Sharia, the ADCFC has demonstrated its willingness to interpret and apply the Civil Marriage Law in a manner consistent with its intended purpose.[8]

Nonetheless, since the ADFCF’s decision is only a first-instance judgment, it remains to be seen whether an appeal will be lodged against it. If an appeal is filed, and the case finds its way to the Supreme Court, it will be, indeed, interesting to see whether the ADSC will be willing to reconsider its stance on this issue.

2. The jurisdiction of the ADCFC

i. The jurisdictional challenges. Before the ADCFC, Y raised two jurisdictional challenges, aside from contesting the court’s subject-matter jurisdiction on the ground of the non-applicability of the Civil Marriage Law due to the parties’ Muslim faith.

The first challenge pertained to what was mistakenly referred to as “territorial jurisdiction” (ikhtisas makani). In fact, the issue concerned interstate jurisdiction, given that both Abu Dhabi and Dubai have their autonomous judicial systems, independent from each other and other court systems available in the UAE federation.[9]

The second challenge concerned international jurisdiction, and that by arguing that English courts, as the court chosen by the parties in any dispute arising from their marriage, were competent.

ii. Rules of international jurisdiction in divorce matters. The relevant rules that are potentially applicable in divorce cases are found is several legislative acts. These include, as detailed in the table below:

(i) the 2022 Federal Act on Civil Procedure (FACP)

(ii) the 2005 Federal Act on Personal Status (FAPS) and

(iii) the 2021 Abu Dhabi Law on Civil Marriage

(iv) the 2022 Procedural Regulation

As the table shows, the potentially applicable provisions exhibit a high degree of redundancy, complexity and occasional inconsistencies, making them difficult to clearly articulate.

	The 2022 FACP [10]		The 2005 FAPS		The 2021 Civil Marriage Law		The 2022 Procedural Regulation
General rules	Article 19		Article 5		Article 17bis provisio, first sentence		Article 4 para. 1[11]
	Disputes other than in rem rights over immovable located abroad	The defendant’s UAE nationality	Disputes relating to personal status matters:	The defendant’s UAE nationality	Disputes over personal status matter of persons covered by the Civil Marriage Law	The defendant’s UAE nationality	Disputes relating to the personal status of the persons covered by the Civil Marriage Law (without indicating the procedural status of the parties)	(Nationality is not explicitly mentioned but implied)
		Domicile or residence in the UAE of the foreign defendant		Domicile, residence, or place of work in the UAE of the foreign defendant		Domicile, residence, or place of work in Abu Dhabi of the foreign defendant		Domicile, residence, current or former place of work in Abu Dhabi
								Property (assets) object of the dispute is located in the UAE
Special rules	Article 20		Article 6		Article 17bis provisio, in fine		Article 4 para. 2
	Actions brought against foreign defendants who do not have domicile or residence in the UAE		Actions relating to personal status matter brought against foreign defendants who do not have domicile, residence or place of work in the UAE		Actions relating to personal status matter (without specification) brought against foreign defendants who do not have domicile, residence or place of work in the UAE		Actions (without specification) brought against foreign defendants who do not have domicile, residence of place of work in the Abu Dhabi or do not have a known domicile or residence abroad
	Article 20(4) (category not specified)	When the action is brought by a wife having domicile in the UAE against her husband who used to have a domicile therein	No equivalent provision		No equivalent provision		Article 4 para. 2 (5) (category not specified)	When the wife is the plaintiff and has domicile, place of work or residence in Abu Dhabi (but without specifying that it is brought against her husband)
	No equivalent provision		Article 6 (2) Actions relating to resolution, annulment of marriage, talaq-divorce[12] or tatliq[13]–divorce	If the action is brought by a wife who is a UAE national, or who previously held UAE nationality, but lost it, –> when the wife has domicile or residence in the UAE	Article 17bis (2) Actions relating to resolution, annulment of marriage or divorce	If the action is brought by a wife who is a UAE national, or who previously held UAE nationality, but lost it, –> when the wife has domicile or residence in Abu Dhabi	Article 4 para. 2 (2) Actions relating to civil divorce and its consequences	When any of the spouses has residence, place of work or domicile in Abu Dhabi
				If the action is brought by a (foreign) wife who has a domicile or residence in the UAE and the action is brought against husband who had domicile, residence or place of work in the UAE, –> when: · The husband abandons his wife and establishes his domicile, residence and place of work abroad · The husband is deported from the UAE
	Article 20 (6) Actions relating to personal status	When the plaintiff is a UAE national or a foreigner who has domicile in the UAE: · If the defendant does not have a known domicile abroad or, · When UAE law is the applicable law to the dispute	Article 6 (5) Actions relating personal status	When the plaintiff is a UAE national or a foreigner who has domicile, residence or place of work in the UAE: · If the defendant does not have a known domicile or residence abroad, or · When UAE law is the applicable law to the dispute	Article 17bis (4) Actions concerning one the personal status matters governed by the [Civil Marriage] Law	When the plaintiff is a UAE national or a foreigner who has domicile, residence or place of work in Abu Dhabi, if: · The defendant does not have a known domicile or residence abroad	Article 4 para. 2 (7) (no reference to the category of the dispute)	When the plaintiff has domicile, residence or place of work in Abu Dhabi: · If the defendant does not have a known domicile abroad, or · When UAE law is the applicable law to the dispute

iii. The plaintiff’s residence as ground of international jurisdiction. In its judgment, the ADCFC has, interestingly, addressed the three challenges above raised by Y as if they were of the same nature. The court justified its jurisdiction (territorial/interstate, subject-matter and international) based on the fact that X (the plaintiff) had a place of residence in Abu Dhabi on the basis of a copy of a lease contract of an appartement located in Abu Dhabi that X submitted to the court.

The legal basis for asserting jurisdiction on the residence of the plaintiff in Abu Dhabi is found in particular in Article 4 of the 2022 Procedural Regulation. Two important remarks can be made here.

a) First, one of the remarkable aspects of Article 4 of the 2022 Procedural Regulation is that it stands distinct from similar provisions found in other federal and local regulations. Indeed, in comparison with the other applicable rules, Article 4 para. 1 of the Procedural Regulation grants jurisdiction to the ADFCF in cases involving persons covered by the Civil Marriage Law simply on the basis of their residence, or even their current or a former place of work in Abu Dhabi, regardless of their procedural status (i.e. plaintiffs or defendants). Paragraph 2 dealing specifically with divorce action, allows jurisdiction to be based on the residence of one of the spouses in Abu Dhabi even when the other spouse – the foreign defendant – has no domicile, residence or place of work in Abu Dhabi (or does not have a known domicile or residence abroad).

b) Second, the case discussed here shows that the jurisdiction of the ADCFC was based on the plaintiff’s simple residence in Abu Dhabi without any other additional specifications (e.g. permanent residence, habitual residence, primary residence, secondary residence etc.). According to the ADCFC’s judgment, residence was established on the basis of a lease contract showing address in Abu Dhabi, which was concluded slightly over three months before the action is filed with the ADCFC. This undoubtedly raises concerns about the risk of forum shopping. This is more so if Y’s arguments appear to be true that the lease contract was a sham entered into solely to manipulate the jurisdiction of the ADFCF. The fact that the ADCFC had in a prior case rejected the action between the same parties on jurisdictional grounds, only 18 days before X rented his appartement in Abu Dhabi, adds to the suspicion.

V. Concluding Remarks:

The ADCFC’s judgment presents other interesting aspects. These include the fact that Y: (i) invoked a choice of court agreement in favor of English courts; and (ii) raised the issue of lis pendens based on the pending divorce proceeding before English courts.

Regarding (i), it is generally accepted in the UAE that choice of court agreement in general, including in civil and commercial matters are null and void. In this respect, case law, based on explicit provision in the 2022 FACP (Article 23), is rather consistent.[14]

Regarding (ii), UAE courts have generally refused to take into account lis pendens considering their jurisdiction as a matter of public policy, that if established, cannot be declined on the ground that the same case is pending before a foreign court (see, e.g., UAE Federal Supreme Court, Appeal No. 183/21 of 18 March 2001).

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[1] The judgment, in its both English and Arabic versions, used the terms “British courts (al-mahakim al-britaniyya). Although it is not technically incorrect to refer to “British courts” in a broad and informal sense, it is more accurate to refer to the specific courts within the various legal systems of the United Kingdom. Each system – English and Welsh law, Scottish law, and Northern Irish law – operates independently with its own courts. For this reason, it seems more appropriate here to refer to “English courts” instead, as it is most likely that these are the courts agreed upon by the parties.

[2] Although the judgment was rendered in both Arabic and English, the English version of the text was not relied upon due to its insufficient quality. This is merely an extensive summary of the decision and not a full translation.

[3] The decision refers here only to territorial jurisdiction (al-ikhtisas al-makani), however the general context of the judgment indicate that the court was also referring to subject matter and international jurisdictions.

[4] This was made on different online platforms which shared information about this case.

[5] The reference of the ADCFC’s judgment and the Court of Appeal’s ruling are mentioned in the ADSC’s decision which provides a brief summary of both cases.

[6] Except for the common law enclaves of Dubai International Financial Center (DIFC) and Abu Dhabi Global Market (ADGM).

[7] Cf. on the legal system of the UAE in general, Essam Al Tamimi, Practical Guide to Litigation and Arbitration in the United Arab Emirates (Kluwer Law International, 2002) 5, 15.

[8] See Civil Marriage Law and Its Effects in the Emirate of Abu Dhabi (Q & A) (Publication of Abu Dhabi Judicial Department, 2023).

[9] For an overview, see the information provided by the Government Portal here.

[10] It should be noted that, although the FACP, which was initially enacted in 1992 (Federal Law No. 11/1992), was replaced by a new Act of 2022 (2022 Federal Act on Civil Procedure), rules of international jurisdiction have remained untouched. This missed opportunity could have been used to bring some order to the regulation of international jurisdiction in family law matters.

[11] It should be noted that although Article 4 is titled “Territorial Jurisdiction of the Court”, it actually deals with international jurisdiction, as the rules included therein concerns cases brought against a foreign who has no domicile, residence or place of work in Abu Dhabi or has no known domicile or residence abroad.

[12] Talaq here refers to the dissolution of marriage by the unilateral declaration of will by the husband.

[13] Tatliq refers to judicial divorce (usually requested by the wife) based on the admitted grounds of divorce.

[14] Cf. Béligh Elbalti, “Perspective of Arab Countries,” in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023), p. 188. On the validity of choice of court agreements in Bahrain, see my comments here.