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Sun 1 Mar 2009 04:00 AM

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When love dies in the UAE

Damian Reilly talks to Alexandra Tribe, specialist Dubai-based divorce lawyer about the rules of divorce in the UAE.

Damian Reilly talks to Alexandra Tribe, specialist Dubai-based divorce lawyer about the rules of divorce in the UAE.

Divorce is an ugly word, don't you think? As ugly as the aftermath of love gets. What was Eddie Murphy's joke about marriage? That's it: "Don't get married. Find someone you really hate and buy them a house."

Except in the UAE, do you really have to buy your erstwhile lover a house? In fact, do you have to give them anything at all? Like many areas of UAE law, expats seem to be hazy when it comes to the specifics of the divorce process here.

There seems to be a feeling that the playing field, or theatre of battle, is not only very different to how it is in, say, European countries, but that it is also heavily weighted in favour of men.

Recently, divorce has been very much in the local and international news. Marnie Pearce, a British mother of two is still, at the time of writing, in hiding after being found guilty of adultery by a Dubai Court.

She had already successfully divorced her Egyptian husband before the accusation against her was made. Sentenced originally to six months in prison, the court of appeal reduced the punishment by half, but still (at the time of writing) Ms Pearce has not presented herself to the police to begin her time behind bars.

Incidence of divorce amongst expats in the UAE is relatively high - perhaps the lifestyle here is conducive to it, characterised, as it is, by a sort of supercharged easy-come easy-go approach to life. With that in mind, Insight tracked down Marnie Pearce's young and charming British divorce lawyer, Alexandra Tribe, to hear exactly how divorce works for expats in the UAE.

If you want to get divorced and you're living in Dubai, do you have to use the local courts?

It depends who you are. It depends if you're a Muslim or a non-Muslim. If you're an expat, you have two choices. You can either divorce in your home country. Or you can divorce in Dubai. The UK has really wide jurisdiction, British laws for jurisdiction say as long as you are broadly speaking domiciled or resident in the UK, then you can get divorced in UK courts.

What does domiciled mean?

Well, it is split up. Everyone starts with their domicile of origin, which is where they were born. If their father lived in that place when they were born, then that's their domicile of origin.

You can only lose that once you reach adulthood by moving to another country with the intention of remaining there permanently.

So we would say that expats that have moved to Dubai don't intend to stay here permanently, and can't stay here permanently, because they can only be here on a visa. So, therefore, unless they intend to go somewhere else and settle there permanently, they are still domiciled in the UK. So that is how we get them all in.

Does that surprise people?

Yes. Because most people think they have to be divorced in the place where they were married.

That's what all clients tend to think. And also they think otherwise the only option is through Dubai courts and Sharia law.

So British people married to non-British people can initiate proceedings back in Britain?

Yes, even if they are not British themselves. Even if they are American, and they can prove that, say, their husband is domiciled in Britain, then they can commence proceedings in British courts.

In fact, he doesn't even have to be British; he just has to be domiciled in Britain. So I have a client who was born in Pakistan. He had Pakistani domicile of origin, but then he moved to England, lived there for ten years, clearly made that his home, and has the intention to return to England when he leaves Dubai.

So, therefore, he has lost his domicile of origin in Pakistan, and obtained domicile of choice in England. It is nothing written down on paper, it is something in your head. It is a personal thing.

So if a British man got married in Africa to an Egyptian girl and she wanted a divorce she could begin proceedings against him in England?

Yes, but the risk for her is that he could say "no, I am not domiciled in England," and it would be up to her to prove that he is, because it is something he mentally decides. She'd have to prove that he had no domicile elsewhere.

If he could say "oh, well I have a house in Timbuktu, and it is my intention to move there permanently after Dubai, and I have bank accounts there," then it becomes difficult. It is more straightforward to do if you are domiciled in the UK, and you are petitioning. But then there are other bits that you have to prove, too.

You have to prove that you're domiciled there, and there is no other country or jurisdiction available in the Council of Regulation - in other words, no one has started proceedings anywhere else.

You talked about choices earlier, what did you mean?

Well, if someone, an expat, comes to me, they can either get divorced in their home country - for England that is relatively straightforward because of the domicile thing, but most other countries say: "Domicile? Forget it.

You have to be actually living here to commence divorce proceedings here." So most non-British expats don't have a choice, they have to move back home, settle in there, and then get divorced. Or they have to divorce here. Now, the local courts say that if you are non-Muslim, you have a right to make use of your own laws.So you can be divorced in Dubai under the laws of your own country. Which is kind of unusual. It is more like the situation in Europe where within the EU some countries have agreed to implement other countries' laws.

The problem is that it is such a hassle. The rules say that if you are divorcing, you must use the law of the husband's home country for the divorce. And this is only for the divorce, not for finances, not for the children. So, imagine if this was British law, our laws just for divorce are huge, massive great tomes. You have got to make those available to the court. And you have to have them translated, and you have to have them all notarised. It is difficult.

At the moment we are getting away with just submitting a couple of relevant sections, and that usually goes through in quite a straightforward way. And also if both couples are agreeing, say two Germans divorcing under German law, and they are in agreement that they want to get divorced, then we can just draft up a divorce agreement under the German laws.

But if the divorce is not agreed, then they have to make available the German law, they have to cite the bits that they are relying on. So it all has to be translated into Arabic for the local judge, which is expensive and difficult. It is far easier to agree on things amicably and do it that way.

In terms of finances and children, you have to make available the law of the party which is obligated to pay, which is usually the father. But, say, for example, you are using English law, which normally applies equal division of assets, if you are making use of those laws in the Dubai courts, the judges here won't apply them if they conflict with local laws. Which in many instances they do.

So the basic principle is: if there is a conflict between the law of the country you are using and the local laws, then they won't apply it. They'll use Sharia law instead. English law, for example, says that the wife can obtain spousal maintenance after the divorce. But under local law she can't - the court would only order maintenance for the children.

So when a woman divorces a man in a local court she can expect no financial support after the divorce?

For herself, no. The kids will be supported. And the other difference is capital settlements. In England, whether something is in your name or not in your name, generally speaking it will be considered as a matrimonial asset, and therefore subject to division. Whereas here, they will only divide assets that are in joint names.

That is based on the fact that under Sharia law the husband has an obligation to support all the women in his family. If your daughter gets divorced, the idea is that you have to support her. The same with your sister.

Some expats might think that it is really unfair that the husband should get everything, but it is because it is based on completely different principles. In England, if it was always expected that the men would always support all of their female siblings, then it would be different.

That said, if it happens to you, if, say, you're an expat woman and your husband divorces you in the local courts under local law, and there is this conflict, so you end up getting nothing, then in England, you can apply for a financial settlement after a foreign divorce.

But it is difficult to enforce here, of course. It depends whether there are assets in England that can be enforced on. Because they may not enforce an order here, even if it was made in the UK courts, if it conflicts with local law.

What advice do you generally offer prospective clients?

My advice is always to try to agree things amicably. Because in the UK courts divorce is a good procedure, it is well set out, and it follows a route, and it can be done really efficiently and fairly, because both parties dislcose all their assets and things, but it is costly. And it can take time. And if it is a children dispute and it goes through the courts then it is only the kids who end up suffering.

I think a lot of people out here divorce because they come and they think it is going to be an idyllic life, and in many ways it is not. For wives, especially, because they may have been working in England doing secretarial work or whatever, but they find those jobs aren't available here on the same amount of money that they were receiving.

Similarly, they may have been the main carer for the children, but here they can be displaced by maids and nannies and so they find themselves thinking "well, what do I do now?" And the husbands are probably working harder than they did. There is a lot of male orientated socialising which excludes wives, too.

And also, from the money side of things, there tends to be less openness about what the husbands are receiving and his finances. In England, you might have joint accounts and you have your salary cheque coming in every month, and it is easy for wives to see what assets there are. Here, husbands get paid discretionary bonuses, they may set up off shore accounts. I find that wives have less of an idea of the family finances.

Emotionally, what sort of state are the people who come to see you in generally?

Vulnerable. Really vulnerable, because they have heard about Sharia law, and they are worried that those principles might be applied, they might not know what assets there are, or whether they'll be sent back home.

My message is that you have more options than you realise, but it is important to seek advice early, because if it is necessary to commence a divorce, or to commence a financial application, then you have to get in soon.

Because delay might give your spouse time to seek advice and issue proceedings in the local courts to frustrate your claim. If proceedings are started here then the UK courts would say that the husband has the right to stay proceedings in the UK because proceedings have been commenced elsewhere.

So that is what I find, lots of British women tend to just up and flee back to the UK with the children because they are worried about not being able to establish domicile. And so they just move back quickly to the UK with the kids and commence divorce proceedings. They could have done it here more amicably.

I've had a case where the wife was advised she might not succeed on the domicile point, so one weekend she just upped sticks, picked up the kids, and flew back to the UK. The next thing he knew, he thought she'd just gone on a break, he got served with divorce papers and financial papers. He was devastated.

We tried to commence child abduction proceedings to get the child sent back to Dubai, but because Dubai isn't a Hague Convention country, the UK courts couldn't order the immediate return of the child. There had to be a hearing, and when there was a hearing the judge said he was concerned about sending the children back because they were Muslim it might mean the wife would be trapped here. It was awful.

Alexandra Tribe can be contacted at alexandratribe@gmail.com

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