Marriage and divorce in uncertain times of Covid-19: a pandemic that changed the Court’s way to deal with family matters
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Hassan Elhais
Al Rowaad Advocates and Legal Consultancy, UAE
During the Emirates-wide strict lockdown implemented in Dubai, the Courts in Dubai suspended divorce and marriages until further notice. As the United Arab Emirates worked towards taking measures to curb the Covid-19 contagion, it enforced certain regulations such as: social distancing, requesting work permits before leaving one’s house, remote working guidelines and closure of public spaces, commercial activities, recreational and entertainment-related activities. Several businesses and industries were all, in an organised way, brought to a close to effectively control any potential risk of transmission of the contagion within the community. Families remained indoors and all commutes unless emergency and approved were prohibited. In such circumstances, activities, particularly the ceremony of marriage may not be feasible as such an event would solicit invitations to large gatherings. Therefore, it was critical that such events were brought to a standstill until alternate arrangements were introduced. In the United Arab Emirates, should any spouse decide to move to the court to seek relief regarding any personal status matter such as divorce, custody, visitation and maintenance, they will need to mandatorily register an application before the Family Guidance Department located within the premises of the Personal Status Courts. This Department mandates the physical presence of both parties to appear before their staff, who is generally a trained mediator adept at handling family matters. The hearings before the Department are conducted with a spirit to promote amicable settlement of disputes. Therefore, the Department requires personal physical presence of the parties without their lawyers and such physical engagements meant that parties could no longer proceed with their divorce application as they could not appear before the Department when the government enforced curfew, remote working and strict social distancing measures.
With the passage of time, the government gradually started easing restrictions and laid down guidelines to be followed by business, general public and government departments. Accordingly, the courts issued guidelines and undertook measures to conduct its usual work during these unusual times of pandemic. The measures focused on continuing with the workings of the Family Guidance Department to handle new applications, follow up on old matters, and schedule mediation hearings, execute settlement agreements, issue divorce judgments and court referral letters.
The measures taken by the government to fight the pandemic spread affected the following family matters practice, namely: i. Marriage; ii. Divorce; iii. Visitation; iv. Financial maintenance; v. Travel bans; and vi. Estate planning. The courts had to depart from the usual procedures to maintain claims and requests related to these matters or even suspend them until alternate arrangements were introduced as procedures during the Covid-19 pandemic to handle requests related to these matters.
Marriage
Before the pandemic: Muslim expats could register themselves on Dubai Court’s website and accordingly both spouses had to visit the court on the scheduled appointment date along with their documents, bride’s guardian and witnesses. An authorised marriage officer would conduct the marriage in physical attendance of all the aforesaid persons.
Non-Muslim expats could conduct their marriages as per the procedures provided by their embassies, which may vary subject to the nationality of each spouse. The marriage could be solemnised in the church or temple as per the religion of each spouse and subsequently attested by their relevant embassy. Such ceremonies would require the physical presence of, among others, relatives, guests and priests.
During the pandemic: In light of the exposure that marriage had particularly related to its ceremonial aspects more than its procedural aspects, the Courts decided to suspend marriages during the early days of the Covid-19 pandemic when the government was strictly enforcing lockdown measures. As restrictions were lifted gradually and the courts decided to implement remote working measures, marriages were allowed to be conducted virtually. The Ministry of Justice and the Dubai Courts launched online marriage registration services to conduct marriages virtually. The process requires the parties to upload their documents on the department’s website (www.moj.gov.ae; or www.dc.gov.ae). The parties could choose an available date to schedule an online appointment with the marriage officer. Whereas the essentials of an Islamic marriage remained constant, the only change is the aspect of physical presence, which was replaced with digital interface. The marriage officer would conduct the marriage using a video conferencing facility, identify the required witnesses in the marriage, execute the marriage contract between the parties through a digital signature, and thereby confirm the marriage by issuing an attested certificate to this effect.
The pandemic brought changes in the way marriages were conducted. Whereas, the courts’ seamless transition to digital technology meant that marriages could still be conducted, the grand traditional gatherings that are typical of marriages in the region had to take a setback, as they continue to be prohibited.
Divorce
Before the pandemic: The mandatory physical mediation before the Family Guidance Department could conclude with either a settlement or a court referral. No spouse was allowed to skip the mandatory mediation before registering a case with the Personal Status Court as this would risk the potential dismissal of the case. If the matter before the Family Guidance Department remains unresolved, the Department may provide a No Objection Certificate to the parties to proceed with the registration of their matter before the Personal Status Court. Since the Department’s proceedings required the physical attendance of the parties, such gatherings could pose potential Covid-19 transmission risk.
During the pandemic: With the introduction of strict lockdown measures by the government, the courts suspended all gatherings before the Family Guidance Department and effectively put all applications on hold pending mediation hearings. With the easing of lockdown restrictions, the courts started conducting hearings through video conferencing. Moreover, the Family Guidance Department has also gradually started calling each spouse individually while maintaining social distancing guidelines and best safety practices against the contagion, however the standard timeline that a file sits with the Department is stretched as the process may take relatively longer due to the unusual circumstances and the social distancing measures thereto. Moreover, the execution of the divorce settlement agreement and the issuance of the divorce certificate remains a challenge as the judge would mandate physical attendance from the parties executing the agreement – which may remain suspended until an alternate arrangement is introduced. When the settlement before the Department does not go through, the Department continues to refer the matter to the court by issuing a No Objection Certificate. Earlier, such certificates were duly signed by the mediator with the court stamp, however in the present circumstances, the concerned mediator in the Department may sent an electronic document by email to the parties, which could replace the No Objection Certificate without the requirement of wet ink signature or stamp of the court.
Visitation rights
Before the pandemic: When the parties to a divorce application before the Family Guidance Department have agreed on the terms of the divorce, such terms could be reproduced into a draft divorce settlement agreement to be executed before the judge. The parties may enter into a mutual divorce settlement agreement, which would govern the relationship between them pertaining to matters related to custody, maintenance and visitation. The parties may agree on a spouse that would keep the custody of the child and the visitation rights of the non-custodian spouse. Accordingly, the parties may cooperate with each other to provide visitation to the non-custodian parent.
Non-custodian parents may also seek a visitation order from the court when there is no amicable agreement in place. The visitation orders could be supervised in public places such as children’s centre or an unsupervised order. When the spouse had an order from the court, the order could be enforced against the other spouse by law enforcing authorities such as police.
During the pandemic: The lockdown resulted in restriction of movement for general public except in emergency cases as defined by the government. The non-custodian parent’s movement was impaired by the lockdown as visitation per se could not be considered as an emergency. Due to the potential risk of transmission of the contagion, visitation orders were not functional and thus could not be enforced keeping the child’s best interest in mind. Supervised visitation orders were anyway affected as public places or children’s center were shut and thus such supervised visitation order could not be implemented. The spouse who had the custody of the child had the discretion to cooperate with the other spouse without relying on the visitation order to arrange any necessary visitation along with safety protocol in view of the current pandemic. The custodian spouse may have the discretion to refrain access to the spouse holding visitation order for reasons related to the transmission of the contagion and the courts could not interfere in the interest of the child’s safety, thereby the visitation orders were suspended. However, keeping the safety of the children in mind, non-custodian parents could have virtual contact with the children through video calling applications.
Financial maintenance
Before the pandemic: The UAE Personal Status Law envisages in Article 63/1 that it is the husband’s obligation in the marriage to provide maintenance support to his wife, which includes and is not limited to food, clothing, housing, domestic help, medical expenses etc. In the event, where the wife can establish that the husband denied her the maintenance support, such payments towards maintenance support it shall immediately become a debt on the husband starting from the date the husband refused to provide the maintenance support. Article 67 of the UAE Personal Status Law provides that a woman may claim reimbursement of up to three years of backdated expenses from her husband.Furthermore, it may also be noted that Article 63/2 of the same law amplifies that maintenance shall be subject to the financial ability of the husband. The law also provides that maintenance shall not be less than acceptable minimum living standards per the economic situation in terms of time and place.The wife also has the right to claim maintenance from the father for the benefit of the children as per Article 78/1 of the UAE Personal Status Law, which provides that father has to financially support the boy until he finishes his education and the girl until she is married. The wife can claim maintenance even if she did not apply for divorce. Furthermore, temporary child support could be claimed till the case is decided as per Article 68 of the UAE Personal Status Law.Accordingly, the wife could register an application with the Family Guidance Department and follow it up until the matter is referred to the court. The court may verify evidence on record and deliver its decision on the wife’s maintenance claim.
During the pandemic: The maintenance order already delivered by the court remains active and the judgment debtor remains under a duty to perform its obligations as per the court order. The law enforcement authority such as the police may be requested to arrest the judgment debtor should they remain in contempt of the court’s maintenance order. However, there may be challenges as the violators of the court’s maintenance order could not be sent to jail due to the potential Covid-19 risks.
Travel bans
Before the pandemic: Either spouse may request a travel ban on the child in order to prevent the other spouse traveling outside the UAE. Travel bans provided assurance to the applicant spouse about the safety of the child, particularly if the spouse is of different nationality and there is a potential risk of child abduction. Since the UAE is not a member of the Hague Convention, there is also a potential risk that the parent leaving the UAE along with the child may not return the child to the other parent. The Court of Urgent Matters may issue a travel ban within 24 hours, based on the circumstances and the merits of the request. The other party may contest against the travel ban and request the court to remove the ban. The final discretion rests with the court and in the best interest of the child.
During the pandemic: The travel ban application continues to remain effective under the present circumstances. However, the removal of travel ban may be faced with challenges, as the party requesting to remove may need to provide a guarantor’s passport to the court as guarantee that the requesting parent would return the child to the UAE to protect the interests of the other parent. Furthermore, the parent who applied for travel ban on the child may have genuine concerns about the conduct of the other parent who would decide to keep the child away out of the UAE and opportunistically use the Covid-19 border restrictions as reasons for not returning the child to the UAE. However, applying for travel ban orders against the husband in the event the husband is in breach of a court judgment continues as default and may be an applicable option besides the aforesaid.
Estate planning
Before the pandemic: Whereas non-Muslims have the option of registering their will with the Dubai Courts, Abu Dhabi Judicial Departments, and Dubai International Financial Center to ensure that their assets are passed on to their chosen legal heirs. In the absence of a will, the court will apply the distribution provisions of Sharia to the assets of the deceased. Accordingly, non-Muslims could approach to draft their wills and register them with one of the aforesaid judicial authorities.
During the pandemic: The DIFC Courts Wills Service Center and Abu Dhabi Judicial Department were open to handle the registration of the wills through video conferencing, thereby allowing virtual registration of wills as part of remote working measures during the pandemic.
To conclude, it is important to note that the situation is changing dynamically and this article represents the situation at the time of writing it, which may have changed at the time of reading it.
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