The IBA’s response to the war in Ukraine
And then came Corona
Diana Hamade Attorneys at Law, Dubai
The 11 March 2020 saw the announcement of Covid-19 being declared a pandemic by the World Health Organization (WHO). Family law practice like any other practice has been affected by the pandemic in various ways. Some areas of family law however have been affected far more intensely than others, so much so that they were making headlines and sometimes breaking news. Areas particularly affected include marriage, divorce, visitation, alimony, travel bans, domestic violence and succession planning.
Just a few weeks prior to the Covid-19 announcement I was in the United States speaking at a family law conference. On the day I was leaving the US the news headlines were in relation to two new cases of corona virus that had been detected in California, but I didn’t think much about it at the time. I could not have imagined how different the world and indeed, the family law practice landscape would be just a few short weeks later.
A couple of days after arriving back in Dubai, the first Covid-19 case in the UAE was reported. At that point however, the UAE’s Ministry of Health did not consider there was much to worry about, although a short while later guidance was issued for practicing social distancing, sneezing into elbows, the frequent washing of hands, and the wearing of face masks. My first experience with such face masks was when I was en route to Riyadh in the first week of February and had to buy a face mask at Dubai Airport. I did notice the contrast between my return trip from the US in January when I saw no measures in place relating to Corona, compared to this trip when I noticed many people were wearing face masks, both at the airport in Dubai and at my destination. On my return from Riyadh I attended court hearings and again I noticed the increasing presence of hand sanitisers and face masks being worn by visitors in court and by court staff.
In the days leading to the WHO announcement there were clear visible changes in the work practices and ethics in court. There were significantly less people around and those that were present seemed to be maintaining social distancing and were wearing masks, it was obvious that concerns about the virus were rising.
Following the WHO’s declaration of Covid-19 as a pandemic, on 20 March 2020, the UAE Ministry of Health reported the first two Coronavirus deaths in the country. Several resolutions were issued in the UAE to curb the spread of the virus and at the same time, allow life to go on without disruption as much as possible. Shortly after the pandemic announcement, Dubai Courts issued Resolution No 30 of 2020, this was to be the first of many new resolutions issued as a direct result of the pandemic.
Resolution No 30 of 2020 was for the postponement of all judicial sessions, implementing remote working, and the use of smart/online services in Dubai courts, along with the provision of the necessary infrastructure services to ensure business continuity in regulatory units. Dubai courts also postponed all hearings at the Court of Cassation, the Courts of Appeal, and Courts of First Instance, and suspended attestations and legalisations of personal affairs, including marriage and divorce, for a period from 22 March to 16 April 2020, subject to extension.
By 4 April 2020, Dubai was on a strict lockdown, Dubai Supreme Committee of Crisis and Disaster Management announced the implementation of the 24-hour sterilisation programme. This lockdown was to stay in effect for a two-week period, which was then extended by a further week. During the lockdown all residents would require a special permit before leaving their homes. Such permits would only be issued for essential purposes.
The Public Attorney of the UAE passed Resolution No 38 of 2020, concerning the implementation of the updated list of violations and administrative sanctions, dated 26 March 2020, which was passed following Resolution No 17 of 2020 of the Cabinet, for passing a bylaw pertaining violations of the precautionary measures and the instructions and duties imposed for curbing the spread of coronavirus.
The lockdown, and changes to courts’ work practices have had a profound effect on family law matters.
Marriages were initially suspended in keeping with government guidelines to maintain social distancing and avoid large gatherings. Consequently traditional weddings have been banned during the Covid-19 precautionary period. However later the Ministry of Justice & Dubai Courts launched online marriage services, allowing marriages to take place virtually. Marriages during the Covid-19 pandemic period would have to be conducted through a website that was specifically designated for this purpose. A choice could be made for selecting a cleric and date, but the ceremony would take place via video conferencing. There have been reports in local media of couples who have had virtual marriages using the new online marriage services and the procedure was reported to have run smoothly albeit not what the couples had originally envisaged for their special day.
With regards to divorce matters, since the implementation of the lockdown there has been an influx of divorce queries and cases registered with the Family Guidance Conciliation of Dubai Personal Status Court. Statistics show that over 2,000 cases had been registered with the personal status courts by April 2020, an increase of over 50 per cent in the same period of 2019.
Divorce matters in the UAE were also initially suspended in March for the duration of the precautionary measures as they were not deemed urgent. However, Dubai Personal Status Court established online working applications to enable the courts to resume some functions remotely. Divorce matters that were already registered with the conciliation are now proceeding either via telephone or video call, or have been postponed for the time being and rescheduled to later dates. Parties can continue to register to file for divorce online, however the time schedule for the first appointment with the conciliator is significantly longer than in pre-Covid-19 times.
Visitation orders were also affected by the pandemic and the subsequent resolutions. In particular the national sterilisation programme restriction of movement affected visitation orders for non-custodian parents. Supervised visitation orders as issued by the courts usually take place at children’s centres, these were stopped due to the closure of all public and recreational spaces.
Non-supervised visitation orders were also restricted, since children were not allowed to leave their homes and permits were only issued to adults. It was mainly up to divorced parents to manage the visitations to enable the non-custodian parent to see the children, but many failed to do so. It was seen that mothers and fathers who have custody of children have also been reluctant to allow visitation for the safety and wellbeing of the children whereas other parents used the outbreak as an excuse to stop their ex-partners from seeing the children. The courts have, to date suspended the enforcement of visitation orders during the precautionary period and it is left up to the parents to make suitable visitation arrangements. Child arrangements have been a serious concern and the legislator should take into consideration this issue when further amendments are due to UAE family law.
Unlike visitation orders, where enforcement continues to be suspended, alimony orders are functional and permitted to be enforced although the enforcement itself may prove to be problematic. While proceedings are ongoing, it was not possible to send bailiffs, or obtain arrest warrants, or get the police to start arresting people who are failing to pay alimony, as it is not something that has proved possible under circumstances during the Covid-19 pandemic. However, solutions have been proposed whereby alimony orders can be enforced similarly in the way of salary enforcement. This is where payment of salaries applied by the Ministry of Labour called WPS should be in place for immediate payments to be deducted from fathers’ bank accounts to make sure payments take place automatically.
The lockdown and stay at home policy has obviously caused a spike in domestic violence cases across the world, in some countries it is reported that calls to helplines have increased by over 50 per cent during the lockdown. It has been reported in a new policy brief by the UN Economic and Social Commission for Western Asia (ESCWA) that domestic violence against women and girls in the Arab region has surged amid enforced lockdowns. There are various family violence complaints authorities within the UAE, the Dubai Foundation for Women and Children, and Directorate of Human Rights which serves Dubai.
The UAE is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction 1980. However, the UAE has implemented its own travel ban procedure. Travel bans are frequently applied by parents to ensure their children cannot be removed from the country without their knowledge or consent. Since the outbreak of the virus, flights have been grounded although there are some limited flights to repatriate residents to their home countries. Travel ban applications remain in effect and continue to be issued. However the removal of a travel ban in the event a parent wants to repatriate to their home country and the other parent remains in the UAE will require a guarantee that the children will be returned to the UAE after the pandemic has subsided. The guarantee is usually in the form of surrendering a passport (eg, a family member’s passport), which will be retained by the court until the children are returned to the UAE.
The pandemic has forced succession planning to the forefront of many people’s minds and there has been a significant increase in the enquiries received on how to register a will and legacy planning. The DIFC (Dubai International Financial Centre) Wills Service Centre (Dubai) and the Abu Dhabi Judicial Department (Abu Dhabi) have adapted to the new rules about working remotely and to government guidelines on social distancing. Both organisations are now offering virtual registrations of wills which are conducted via video-conferencing.
The pandemic has affected the way many law firms function in their daily work practices. A circular was issued by the Executive Council of the Government of Dubai on 25 March 2020 for the implementation of working 100 per cent remotely, and even more, a full curfew, and the necessity to stay home as one of the most important priorities for facing Covid-19.
The restrictions of movement were eased and the Ministry of Human Resources & Emiratization issued Ministerial Resolution No 281, which mandated for the reduction of the attendance of the number of workers to a maximum of 30 per cent of the total number of workers.
As of now, restrictions on movement remain somewhat alleviated but nevertheless in place. Residents are permitted to leave their homes between 0600 and 2200, however they must maintain social distancing and wear face masks and gloves when outside their homes. Businesses have also learnt to adapt to new ways of working and ensuring only 30 per cent capacity of employees and visitors at any given time. Borders remain closed and flights, except for repatriation flights, are grounded. It remains to be seen when life will return to normality and the ways to which we were accustomed prior to the outbreak.