UK expats and divorce in the UAE

Natalie Sutherland considers private international law and divorce

In SA v FA [2022] EWFC 115, Burgess Mee Family Law successfully argued a British expat solicitor, living in Abu Dhabi, can have his divorce heard in the new Abu Dhabi Family Court for Non-Muslims, despite the English court having jurisdiction to hear the divorce based on domicile. Whereas previously issuing in England and Wales would have been standard to avoid Sharia law, now that Abu Dhabi has established new personal status law for non-Muslims (essentially any expat) which deals with marriage and divorce, if a forum dispute arises, it will be more difficult to argue that England and Wales is the more convenient forum.

The facts

The wife (SA), originally from South Africa, had met and married the husband (FA) in England, moving to Abu Dhabi shortly thereafter, where they spent the next 14 years. SA issued a divorce petition in England and Wales, citing both parties’ domicile, which she claimed they had retained throughout their residence in the UAE. FA challenged this, arguing neither party were domiciled in England and Wales and the petition should be stayed as the court of Abu Dhabi was the more convenient forum.

Issues

HHJ Hess had two questions to consider. First, does the English court have jurisdiction to hear the divorce on the basis that one party or the other (or both) was domiciled in England and Wales at the time SA issued her divorce petition in England? If so, should the court grant a stay of the English proceedings pursuant to the Domicile and Matrimonial Proceedings Act (DMPA) 1973 s5(6) and Schedule 1, para 9 to allow matters to proceed in the UAE?

Domicile and forum

The relevant date is that of SA’s English petition on 21 September 2021. Until 1998, SA had a domicile of origin of South Africa and until at least 2008, when the parties moved to the UAE, FA had a domicile of choice of England. HHJ found SA had acquired a domicile of choice of England after 1998, by a combination of her residence in England and the acquisition of an intention of permanent and indefinite residence there. The issue was whether, between 2008 and 21 September 2021, the parties had abandoned their domiciles of choice and origin of England and acquired a new domicile of choice of UAE (or in SA’s case, reverted to her domicile of origin). HHJ concluded SA was at all times domiciled in England. As for FA, HHJ was not convinced on the balance of probabilities FA had formed the intention to permanently reside in Abu Dhabi at the time of the petition, and therefore FA had retained his domicile of origin. HHJ therefore ruled the English court had jurisdiction to hear the case.

However, he concluded the court in Abu Dhabi was the more appropriate forum and he would grant a stay of the English petition for the following reasons:

• The length of time the parties had lived in the UAE was a strong factor in HHJ’s decision that the Emirate was the ‘natural forum.’ It is also the jurisdiction to which they had the most real and substantial connection and the location of most of their assets.
• HHJ accepted FA’s undertaking to do all in his power to support SA’s presence in the UAE for the indefinite future.
• HHJ disagreed with SA’s arguments the new court ‘remains embryonic’ and would not provide ‘substantial justice’. HHJ also rejected the argument that as the only currently appointed judge was a Muslim Emirati, he should be concerned that any decisions would be based on Sharia norms rather than the new law;
• HHJ accepted FA’s undertaking to meet SA’s reasonable costs of prosecuting matters in the UAE, which dealt with SA’s concerns that because the UAE had no equivalent to LSPO provisions, she would not have equality of arms.
• If SA received an award that fell well short of what an English court would regard as fair, she had the ‘safety net’ of a Part III application under the Matrimonial and Family Proceedings Act 1984..

While this case was fact specific, it will likely give expats in Abu Dhabi pause for thought when considering where to issue divorce proceedings, as quite clearly the new Family Court for Non-Muslims cannot be ignored

Natalie Sutherland is a partner at Burgess Mee Family Law: burgessmee.com