Article 117-1 of the Personal Status Law provides that a spouse may seek divorce on the grounds of harm if he/ she or his/ her parents or family have suffered injury in word or in deed (either material or moral) such that it is not possible to remain in an amicable relationship unless the parties have reconciled. An example of harm to a wife is her husband's filing for divorce without excuse. The harm will be assessed by the Court based on the evidence.
Facts
Respondent (wife) brought an action (Action No. 645-2006 - Personal Status (Muslims)) against her husband seeking:
Divorce on the grounds of harm;
An order requiring him to pay her the sum of AED 6,000 in alimony from the date of filing the action until she is granted a decree of divorce and she completes the legal waiting period following divorce (Iddah);1
An order that her husband pay her AED 10,000 in Muakhar El Sadaq (deferred dowry)2;
An order granting her custody of her two sons; and
An order requiring her husband to pay her AED 10,000 in child support (for food and clothing but not accommodation), to be allocated equally among her two children, from the date of filing the action.
The Respondent (wife) contended that the Appellant (husband) deserted her, leaving her at her parents house, and failed to arrange a marital home or to support her and her sons financially, even though he was well off.
The Defendant (husband) brought an action (Action No. 643-2006 Personal Status) against Plaintiff (wife) for an order to compel her obedience by returning to his house and not leaving it without a legitimate excuse.
After joining the two actions and hearing witnesses from both parties, the Court ruled on 06.12.06 that the Plaintiff (wife) should be granted a final divorce from her husband. The Court determined that her Iddah would run from the date of the judgment and ordered the husband to grant his wife all the entitlements of marriage as well as custody of her two sons and rent money.
Plaintiff (wife) appealed the decision (Appeal No. 461-2006 - Personal Status) and the Defendant (husband) also appealed the decision (Appeal No. 470-2006).
On 26.04.07, the Court decided in Appeal No. 470-2006 to dismiss the appeal and in Appeal No. 461-2006 to amend the appealed decision so that it awarded AED 3,000 in monthly alimony to Appellant (wife) and AED 3,000 in child support (to be allocated equally among the two children) and determined that the Iddah shall run from the date of divorce to the date when the decision became final. The Court upheld the appealed decision otherwise.
The defendant (husband) appealed to the Court of Cassation on 23.05.07 seeking reversal of the decision.
Decision
The Court hereby decides to dismiss the appeal. Appellant (the husband) is to pay costs and AED 500 advocate's fees and the deposit will be for feit.
Commentary
Article 117-1 of the Personal Status Law provides that a spouse may seek divorce on the grounds of harm if he/ she or his/ her parents or family have suffered injury in word or in deed be (either material or moral) such that it is not possible to remain in an amicable relationship unless the parties have reconciled. An example of harm to a wife is her husband's filing for divorce without excuse. The assessment of harm for which a wife seeks divorce from her husband lies within the sound discretion of the Court based on the evidence.
Article 117-1 reads: "A spouse may seek divorce on the grounds of harm that precludes the continuation of an amicable relationship between the spouses unless the parties have reconciled."
Article 122 of the Personal Status Law states in connection with the burden of proof in divorce cases that the Court may in its discretion accept testimony justifying reconciliation if the witness states or his words suggest that harm abounds among the spouses. The testimony of siblings on each other's behalf is also admissible as long as the sibling giving the testimony is in good standing and is not under the care of the brother for whom he is testifying and does not seek to give him an advantage or protect him from liability. The reliability of testimony is a weight and credibility issue for the discretion of the trial court.
Article 122 of the Personal Status Law provides:
In an action for divorce on the grounds of harm, harm shall be proved by legal means any by any judicial rulings obtained by the spouses.
A court may in its discretion accept testimony justifying reconciliation if the witness states or his words suggest that harm abounds in the lives of the spouses.
Determination of liability and the amount of alimony are questions of fact that lie within the discretion of the trial judge.
According to Articles 55-1, 63, 66 & 67-71 of the Personal Status Law, the alimony due to a wife from her husband is established on the basis of a valid contract and is a liability that accrues against the husband at the time he ceases to provide support, unless the wife is recalcitrant and thus not entitled to alimony, or has left the marital home without legal excuse. The husband has the burden of proving his support of his wife.
As the person responsible for the support of his minor children the husband must, if able, provide a suitable home in which they can live or else the cash-equivalent value according to his ability to pay.
Assessment of such ability is within the trial court's discretion that would not merit high court review if exercised soundly on the basis of supporting evidence. The Court of First Instance whose decision was upheld on appeal ruled that the husband should pay rental on a house for his sons to live in after finding that Appellant (the husband) failed to provide a suitable home for his wife and her two sons and that the lease for the house he did provide was sham as it showed a very low rental price that was not commensurate with the prevailing market price level. The Court is therefore suspicious especially since the lease is not attested. The appeal is accordingly dismissed.
By Djalila Behaz Litigation Department
© Al Tamimi & Company 2008
