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Abu Dhabi, UAETuesday 21 August 2018

Can I use an overseas court order to make my ex-husband pay child support?

The South African resident has a garnishee order in place and wants to know if it can be applied to her former spouse in the UAE

A garnishee order is often used in family lawsuits such as divorce and child maintenance cases. Photo: Alamy Stock Photo
A garnishee order is often used in family lawsuits such as divorce and child maintenance cases. Photo: Alamy Stock Photo

What is the law in respect of expats in the UAE not paying maintenance in their home country? Are garnishee orders effective as they would be in the home country? I am owed child maintenance as part of an agreed divorce settlement and my ex-husband now lives in the UAE. JM, South Africa

A garnishee order is also known as a ‘third party debt order’ and is issued after a lawsuit has ended but where monies owed have not been paid. Essentially, it compels a bank to automatically deduct money from an account to settle a debt and is often used in family lawsuits such as divorce and child cases.

As this is a complex legal issue, I sought expert advice from Hassan Elhais, of Al Rowaad Advocates and Legal Consultants. He advised: “If the expat is residing in the UAE and his wife is based in South Africa, the wife has the right to file a maintenance case in the UAE courts in the emirate where the expat is residing. Jurisdiction as per Article No. 6 of the UAE Personal Status Law No. 28 of 2005 is given to the courts local to the respondent (where the husband is based in this case). Once the wife files her case in the local courts she can request to apply the UAE or the South African Law.”

He says he has seen this happen in a Dubai court where a husband failed to comply with a court order and the wife was granted access to his financial records. Mr Elhais added: “If there is a settlement agreement signed in South Africa and at the date of signature the husband was already UAE resident, such agreement might not be recognised in the UAE. However, the wife will still have the right to file a new maintenance case under the South African Law in the UAE courts, because article no. 1 of the UAE family law No. 28 of 2005 gave the expats the right to apply their home country law here.” While it appears that JM has the right to take action against her ex-husband for non-payment of child maintenance, I recommend she seeks advice from a lawyer in the UAE who has experience in this area.

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What happens to an employee's gratuity if the company has been taken over by a new company? Will the old company pay for it or will it be shouldered by the new one? Is there a possibility that the old company will not give the gratuity? SC, Dubai

If the new company is not taking over the company or staff contracts, then the existing employer is liable to pay wages in full and also end of service gratuities. The provisions of the UAE Labour Law, per Article 126 state: "Should a change occur in the form of the establishment or the legal headquarters thereof, the employment contracts valid at the time of the change shall remain valid between the new employer and the workers of the establishment. The employment shall continue and the original and new employer shall be jointly liable for a period of six months for the execution of the obligations arising from the employment contracts during the period preceding the change. Upon the lapse of the said period, the new employer shall solely bear such liability."

The buyer of the business should ensure the purchase price takes account of any such liabilities the company has accrued as at the date of acquisition. In most cases, a contract of employment will remain in force and the relevant employee’s service will be considered continuous. Any employee in this situation would be wise to ask for clarification in writing.

I was deported from the UAE in March last year due to overstaying on my visa but I have no ban stamp in my passport. Am l allowed to enter the UAE again? OM, Kenya

The issue of whether someone is permitted to re-enter the UAE after being deported in covered in Federal Law No. 6 of 1973 concerning Immigration and Residence. Article 29 of this law states: "The Department of Nationality and Immigration shall issue an order for deportation of an alien if he has no residence licence or if his residence licence has been expired. Such an alien may return to the country if he fulfils the conditions for entry in accordance with the provisions of law.’" This however, is subject to specific agreement, per Article 28: "An alien who has been deported may not return to the country except with special permission from the Minister of Interior."

When someone has been deported by the UAE authorities, they will generally have a lifetime ban but this can only be confirmed by government authorities. This information cannot be obtained by a third party so to clarify, OM needs to engage a lawyer to enquire on his behalf or could try contacting the General Directorate and Foreigner Affairs in the emirate in which he last had a residency visa.

Keren Bobker is an independent financial adviser and senior partner with Holborn Assets in Dubai, with over 25 years’ experience. Contact her at keren@holbornassets.com. Follow her on Twitter at @FinancialUAE

The advice provided in our columns does not constitute legal advice and is provided for information only

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