x Abu Dhabi, UAESunday 23 July 2017

A better way to handle the messy matter of divorce

In the delicate matter of divorce, an advisory panel would lighten the legal load on couples

When two people decide to marry, they rarely foresee a divorce. Even when a marriage goes wrong, divorce is not a decision to be made impulsively. Ending a marriage can be draining, both emotionally and financially. Even when it becomes inevitable, divorce can cause a lot of pain.

And you really do need a lawyer in a divorce, despite the lawyers' fees spent in the process.

A good lawyer will fight for your rights and claim those things that are lawfully yours, even make you aware of rights you did not know existed. But the trend of couples foregoing lawyers and handling their divorces through the courts' conciliators seems to be creating serious problems.

In a high proportion of cases, out-of-court settlements do not work and a court must intervene. Proof of this can be found in the many cases filed with the courts requesting that out-of-court settlements be invalidated or amended.

Do not misunderstand: You are not reading a practicing lawyer's lament for lost business; as a lawyer I tell myself that clients tight with their finances are clients I did not really want.

Rather, I am concerned with this trend because of the sad reality that in family law cases, one person may try to manipulate the situation to his or her advantage, which is easier when the other half of the broken couple does not have a lawyer.

When a marriage falters, non-Muslim expatriates will usually consult a lawyer and be advised that UAE law gives them the choice between their home-country laws and the UAE's Sharia law. If the divorce applicants are both UAE-resident Muslims but from different countries, they will be told that they can be divorced before the local courts according to a foreign administrative law if they agree, or the UAE's law if they fail to agree.

Typically the same litigants will meanwhile seek advice from non-lawyer friends. A mother may know that Sharia will grant her custody of her minor child, with alimony even if she is a working mother. So she will choose UAE law. A man may know that all he has to do to legitimise an extra-marital affair is to convert to Islam and take a second wife - ignoring all the possible consequences under the laws of his own country.

The alarming increase in divorce and family disputes throughout the Emirates is a matter of concern and is a call for action. Dubai's 2011 divorce total, for example, was 9 per cent greater than the 2010 figure, according to Dubai courts data. The Family Reconciling and Guidance Department succeeded in resolving 59 per cent of the disputes submitted to it, while the others were sent to court.

The increase in divorce and other family-law matters has led courts around the UAE to provide separate buildings for family law, managed independently from other courts. This will finally provide the necessary space and facilities for the case-load.

But the challenges faced by UAE's family-law sector go beyond buildings. The serious one is the reconciliation system in divorce proceedings.

Article 98 of the Personal Status Law of the UAE says that reconciliation must be explored before a divorce can be approved. But the counselling body which conducts the reconciliation process has a lot of shortcomings.

Here's what is needed: a professional advisory panel of lawyers (including experts in the appropriate foreign divorce law codes), marriage counsellors, psychologists, medical practitioners, translators and social workers. All would have prior experience in family-dispute counselling, as well as legal expertise.

Under court supervision, such a panel could help families try to settle differences amicably. A divorce, if it proves inevitable, could proceed with the assistance of these same advisers.

This team of expert professionals, both men and women, would in each case undertake a thorough review of the couple's religious background and, where nationalities differ, of the respective governing law codes. Care would also have to be taken to make the parties comfortable in opening up to those offering advice. Of course proceedings would be highly confidential.

The work of this panel would not prevent either side from filing a case at court. The process would be entered into voluntarily and the decision would not be legally binding. The decision, although with no legal implications or enforceability at law, could be used in evidence should there be a need to resort to legally binding procedures later.

It is correctly said that family lawyers see good people at their worst. People come to family lawyers when their personal lives are a mess. These lawyers can guide clients through the legal maze, but may not be able to provide the personal compassion divorcing people seek. Clients sometimes complain of this, but lawyers simply are not family counselling professionals; their job is to focus on the law.

But by working with other dedicated professionals in the kind of panel proposed above lawyers could help provide better resolution of these painful life events.

 

Diana Hamade is an Emirati lawyer and legal consultant. She is the founder of International Advocate Legal Services in Dubai