‘istilhaq’ – the legal recognition of a newborn child

In these blogs, I will regularly refer to Articles from the Federal law 28 of 2005 of Personal Affairs; this is the main UAE statute covering family law issues. For short, I will refer to this statute as the ‘PSL’.

On the birth of a child in Dubai, in order for a birth certificate to be produced, the Ministry of Health would need to confirm the relationship between the child and the father. Under Article 89 of the PSL, the relationship between a father and his child may be legally recognised by the following means:

·         Proving  a marriage between the father and birth mother

·         By the father confessing to the Court that he is the true father of the child

·         By other evidence

·         By scientific means

It is important that a child is recognised as being legitimate (and in this context I mean legitimate to be a child born with legally identified parents, not necessarily just born within wedlock). An illegitimate child would not be entitled to a birth certificate within the UAE, could not obtain a passport, or could not claim inherited assets in the future. In addition, a mother could not claim maintenance for an illegitimate child.

In order for marriage to prove the filial relationship between father and child, under Article 90 of the PSL, the child must have been born sufficient time after the marriage of the mother and father. The time period that must elapse after the marriage is the minimum pregnancy period, which under Article 91 PSL is defined as 180 days. If the child is born less than 180 days after the marriage a criminal offence may have been committed by the parents, by having sexual relations outside marriage.

Following the birth of a child in Dubai, the Ministry of Health would issue a birth certificate. The parents would first need to lodge their marriage certificate so that it can be verified that the mother and father were married for longer than the minimum pregnancy period before the child was born.  A medical committee has been formed in Dubai specifically to rule on circumstances in which the pregnancy period is in question. Under Article 91 PSL, the medical committee can decide on a lesser minimum pregnancy period where appropriate.

Our firm was recently instructed on a case involving a couple living as expatriates in Dubai. In this case the parties had married in their home country in a traditional marriage celebration. However  the marriage certificate had been produced and dated 8 months after the marriage; this was customary in their country. On the subsequent birth of their child in Dubai, difficulties arose during the attempted registration of the birth since the Ministry of Health determined that the minimum pregnancy period had not been met. The parties therefore applied to the Court for a declaration that their child was legitimate. 

In this case, the father provided a statutory declaration confirming the true date on which their marriage took place, and explaining the circumstances in which the marriage certificate was produced at a later date. The declarations were legalised by the Ministry of Foreign affairs and UAE embassy in their home country, and notarised here and translated in to Arabic. The Court accepted the evidence of the father and the Judge determined that the child was legitimate.

In another recent case, a Philippine couple had been granted a licence to marry in Dubai by the Philippine consulate and this was produced more than 180 days before their baby was born. However their actual marriage took place less than 180 days before the child was born, and this caused problems for them at the registration of the birth. The Judge determined that more than 180 days existed between the production of the marriage licence and the birth of the child, and for the moral protection and safety of the child, he should be made legitimate. 

A number of similar cases have been carried out by the UAE courts. Although the UAE does not have a system of precedents, the Supreme Court of the UAE publicises some cases in order to give practical recommendations for lawyers in the region. The underlying principal arising from these judgements is that the Court will attempt wherever possible to ensure that a child is pronounced as being legitimate, as this is clearly in the child’s best interests.

These principles were considered in a 2003 Supreme Court Judgement also involving an expatriate couple.  In order to legally confirm that he was the father of a child so that a birth certificate could be produced, the father made a confession to the court to confirm that he was the father. The Court accepted that the confession met the provision of Article 89 PSL and therefore saw no need to investigate whether the parties were married as the filial relationship had already been proved. This case demonstrates the Court’s desire to take a welfare based approach to the resolution of these issues, within the ambit of the law.

Financial Claims: Alternatives & Procedure

 

Court is not the only option for resolving financial disputes on divorce; in fact Court should be seen as a last resort. We have set out below a summary of the different options for reaching an amicable settlement with your spouse.

Achieving the Settlement

There are several ways of approaching the question of split of financial assets and future financial provision on relationship breakdown. The most appropriate approach will depend the level of assets and income and whether children are involved.

(a)  Direct discussion between the parties

If the total available assets are not high or there are no property assets and no real issues between the parties then direct negotiation between the parties without the intervention of lawyers will often produce a cost effective solution. The lawyers can then be used only to advise on whether the proposed settlement is reasonable and whether it would be advisable to record the agreement reached in either a formal written agreement or by means of a court order made by consent.

(b)  Negotiation between lawyers

Where the level of assets are higher or there are property assets and especially where there are children it will usually be necessary for  lawyers to investigate the finances of both parties and advise on an appropriate settlement and how this can best be achieved.

Such investigation of finances will involve each side summarising their finances on a detailed form and offering voluntary disclosure of all relevant financial documents. This disclosure will generally include :

1. Statements of bank and credit card accounts for about 12 months
2. Property valuations and mortgage statements
3. Investment valuations
4. Pension valuations
5. Documents confirming debts and liabilities
6. Documents confirming income and employment benefits
7. Schedule of outgoings

If the lawyers are unable to agree an appropriate settlement or where there is delay by one side in furnishing information or attempts to hide assets then it is likely that the wife’s lawyer will issue a further Court application to ask the Court to intervene  (see below).

(c)   Facilitated negotiation with a mediator

Litigation through the Court can be very expensive. Where the parties cannot agree it is often helpful to obtain assistance from a mediator. Family mediators are trained lawyers, that are independent and neutral. A mediator will help the parties identify the issues in dispute, so that they can be discussed constructively with a view to reaching an amicable agreement. Mediation is most useful where both sides agree to use that process. Any agreement reached through mediation can be drafted in to a formal agreement by solicitors (see below). The benefits of mediation are:

•  The ability to choose an independent mediator in whom both parties have confidence
•  A cost saving as the mediator fee will be split equally between the parties 
•  It has been proven that agreements reached amicably between parties rather than imposed by the court are more likely to be long lasting    
  

(d)  Private Arbitration

A process that is fairly new to family law is that of private arbitrations. In this process, the parties nominate an independent arbitrator to act informally as a ‘Judge’ to decide on an appropriate outcome. These independent arbitrators have undergone specialist arbitration training, and are made up of barristers, solicitors or retired Judges.

The benefits of such arbitration are as follows:

• The ability to chose an arbitrator in whom both sides have confidence
• Knowing that the arbitrator will be available when he or she has been booked to be available and  will have read the papers, 
• A choice between following normal procedure (Forms E etc), or choosing a different procedure,
• The option of  directions hearings being conducted on paper, by telephone or by video link,
• If there is one specific issue impeding settlement, the scope for it to be determined on written       submissions,
• Complete confidentiality.
  

(e)   Collaborative Law

The collaborative family law process is a relatively new way of dealing with family disputes. Each person appoints their own lawyer but instead of conducting negotiations between you and your partner by letter or phone you meet together to work things out face to face.

Each of you will have your lawyer by your side throughout the entire process and therefore you will benefit from legal advice as you go. The aim of collaborative law is to resolve family disputes without going to court. 

(f)    Litigation through the Court

If the Court is asked to intervene it will set a timetable for steps to be taken by each side leading up to a final Court hearing when the Judge will decide on what financial settlement is to be imposed on the parties. A typical timetable will involve the following steps :-

1. Issue of application in Form A by one of the parties.
2. The Court sets a date for exchange of financial statements by each side in Form E together with financial disclosure and also sets a date for the first hearing
3. There is exchange of Form Es by the parties together with financial documents
4. Each side will review the Form E and financial documents of the other party in detail and prepare a questionnaire of what further information/documents (if any) they require from the other side.
5. Each side will deal with the questionnaire of the other although there may be arguments as to what questions are strictly relevant
6. The parties (if available) and their legal representatives attend the first hearing at Court. It will often be appropriate to instruct a barrister to represent you. The Judge will decide what further evidence the parties should prepare and deal with any arguments on the questionnaires. There may be directions by the Judge to obtain expert evidence (eg house valuation from a surveyor). Sometimes the parties have been able to agree a settlement by this stage and, if so, the Judge can be asked to confirm that settlement by means of a formal Court order. If the parties have not been able to agree the Judge will set a date for a Financial Dispute Resolution (FDR) Court hearing.
7. The purpose of the FDR is to try to facilitate a settlement between the parties. Both parties should therefore attend Court that day. It will usually be essential to instruct a barrister to represent you. The Judge will expect each side to have made formal offers to settle by that stage. There is often considerable negotiation between the parties and their lawyers on the day. If the parties still have not been able to reach settlement the Judge will often give an indication of what settlement order he would have imposed based on the evidence available.
8. A date for the final Court hearing is set.
9. There will be considerable work to be done in the intervening period including preparing your formal statement, arranging updates for valuations and documents and preparing the bundles of documents to be used at the final hearing including a formal Schedule of Issues and a Chronology.
10. At the final Court hearing you will have a barrister representing you and it will be necessary for you to attend Court. You will have to give oral evidence and answer questions from your spouse’s barrister. The final hearing may well take more than one day depending on the matters still to be agreed. At the conclusion of the hearing the Judge will make his order.

Recording the Settlement

A decision will also have to be taken as to the most appropriate method of recording any settlement reached. Again there are several choices.

Simple verbal agreement with no written record

This is unlikely to be appropriate in any but the simplest of cases. It has two important disadvantages. Firstly there is no time limit under English law after which one party cannot claim a financial remedy against a former spouse. This may become a crucial point at a much later date if one parties’ financial position greatly improves in the future. Secondly English law allows a spouse or former spouse to make a claim against the estate of the other on his/her death. This can only be prevented by means of a formal Court order.

Written record by means of a formal agreement

This is often used where parties are to separate but not to obtain a formal divorce. As much or as little detail can be provided for in the agreement. English law states that a formal agreement may be help to be binding as long as both parties have sought independent legal advice, there has been disclosure of both parties financial positions, and there was no duress. If parties are undergoing divorce, it is more advisable for an order to be obtained through the Court which would be directly enforceable.

A formal agreement can be helpful as an interim measure when the parties have separated but not yet decided to divorce, or when a divorce could not yet take place (for example where the parties had not been married for a year).

Court order by consent

It is common for the essential agreed terms of a settlement to be recorded in an order of the Court which is made by consent. The procedure simply involves the drafting of an order confirming all the terms and submission of papers to the Court. There is no need for either party to attend Court. If the Judge approves the proposed order it will be confirmed by the Court.

Such consent orders often provide for a “clean break” between the parties, either immediately or at a specified time in the future. Such a “clean break” will mean that the parties become financially independent with no possibility of any future claims on each other.

It is possible to have a “clean break” as between the parties even where children are involved and there is to be continuing financial support by the father for the children.

Court order following decision by the Judge

Where the parties have followed the litigation route the Judge will ultimately decide the terms of the financial settlement to be imposed on the parties unless there is some interim agreement which can then be dealt with as a Court order by consent.

Interim Claims

It is possible to make an application to Court in certain circumstances, for example:

• For urgent interim financial assistance. This is known as maintenance pending suit (MPS). Such an application can also be coupled with a request for financial assistance towards legal costs where the party has no other means by which to pay.
• To protect matrimonial assets when it is feared that one party may remove or dissipate funds.
• To recover assets that have been removed or dissipated by one party
• To uncover assets, by requesting the examination of documents or the direct questioning of a third party

The position is complex and we will give you guidance as appropriate.

Adoption in the UAE

Sadly a great number of children are abandoned in the United Arab Emirates each year. Most likely this is as a result of young mothers being fearful of the repercussions of bearing a child outside wedlock. It is a criminal offence in the United Arab Emirates to have a sexual relationship outside marriage. In practice without clear evidence of the offence, no criminal sanctions are implemented. However the birth of a child to unmarried parents is clear evidence.  6 newborn babies were found abandoned in the UAE in 2011 alone. The publicity of these abandoned children has led to the issue of adoption being discussed frequently in the local press.

The laws of the UAE prohibit adoption within the UAE by non-Emirati couples. This means that only Emirati citizens holding UAE passports may adopt abandoned children from the UAE. Expatriate couples residing in the UAE must look abroad to adopt children, typically to Ethiopia or Mexico. The adoption process for expatriates can still be conducted from the United Arab Emirates, regardless of the nationality of the parents.

Abandoned children that have been born in the UAE obtain can obtain UAE citizenship and a UAE passport. This is set out at Article 2(e) of the Federal Law 10 of 1975, which amends the Federal law 17 of 1972. The law states that a child will be deemed abandoned in the UAE unless proved otherwise.

Under Sharia law, it is encouraged for parents to care for a child that is not their biological child, and nurture that child as if he was their own. However it is prohibited for those parents to give the child their own surname. The Federal laws of the UAE (based on Sharia laws) circumvent this issue by allowing the adoptive parents to nominate the child’s first name, whereas the Court would order the child’s surname. In practice the children being adopted within the UAE are always abandoned, therefore their true identity at the time of adoption is not known. It is therefore possible for the Court to nominate the child’s new surname, making it the same as the adoptive father’s.

Service of family proceedings in Dubai and the UAE

Service of family proceedings in Dubai and the United Arab Emirates

Rule 6.43 of the Family Procedure Rules 2010 requires that service of court papers abroad must take place: 

• In accordance with the Service Regulation (Regulation (EC) No 1393/2007); or
• Through foreign governments, judicial authorities and British Consular authorities; or
• In accordance with the laws of Dubai in relation to service.

Service in accordance with the Service Regulation is not possible on another party in Dubai or elsewhere in the United Arab Emirates as they are not member states of the European Union.

Service through the UK Foreign Office is complicated and involves many delays. As at April 2012 the relevant section of the High Court in London was quoting upwards of 8 months to effect service.

The third option is to serve in accordance with the laws in Dubai. All issued Court proceedings in Dubai are served directly by the Court staff or Court notaries. Guidance is given at Articles 1 to 10 of the Federal Law No 11 for the year 1992. These articles set out how service (announcement) takes place through the Dubai Courts. Although the laws do not specify how foreign proceedings should be served, they helpfully elaborate on permitted methods of service in Dubai.  

It is clear from these laws that documents are deemed effectively served as long as they have been delivered to the Respondent after 7am and before 6pm (Article 6) and not on official vacation days (Fridays or public holidays). Article 8 sets out how service can take place if the Respondent cannot be found. Although service of court documents in Dubai is carried out by the Courts, it appears from these statutory provisions that service is effective as long as the Respondent has notice of the proceedings. It therefore appears that personal service of English divorce proceedings, would be service in accordance with the laws in Dubai subject to due compliance with articles 6 to 8 of the Federal Law 11 of 1992. Personal service of court documents can, and often does, take place in Dubai by courier delivery.

Another option is to request the Dubai Court Notaries to serve English Court documents on a Respondent in Dubai. The Court Notaries have their own section on the Dubai Court website (www.dubaiCourts.gove.ae). The Dubai Court Notaries are however likely to insist that all documents are translated into Arabic and this can add considerably to the legal costs.

We have had success in obtaining an English court order permitting due service of English divorce papers on a party in Dubai by methods compliant with local Dubai law.

Alexandra Tribe on Dubai Eye 103.8

Alexandra Tribe on Dubai Eye 103.8 with Desley Humphrey advises on intercultural marriages in the UAE and the Islamic World

http://dubaieye1038.com/page/The_Emirati_Connection_10.04.2012/13281?feed=