ABU DHABI // A landmark ruling by the Federal Supreme Court has held that a husband divorced by his wife must pay her half the marriage dowry if there is evidence of abuse. The ruling sets a precedent that will probably also affect continuing efforts to reform the family law system.
It is designed, experts say, to prevent a husband from abusing or harassing his wife with the intent of forcing her to divorce him - a situation that previously meant the wife usually forfeited the so-called "deferred dowry". The previous rule encouraged husbands to coerce their wives into seeking a divorce. Husbands would desert a wife for years and refuse to pay for her daily needs. "This happens all the time, in hundreds of cases," said Nashwa al Qubaisi, a lawyer who deals with marriage and divorce disputes.
"This kind of ruling would definitely help prevent husbands from taking advantage of the family law. Sometimes a wife would even pay in order to get the husband to divorce her." The ruling establishes a legal precedent and de facto becomes law. Lawyers can cite it to buttress their arguments, but must prove their cases are similar. Experts say the decision closes a gap in family law that, if the law does not address a specific situation, defers to an interpretation of Sharia law.
The Ministry of Justice recently launched an awareness campaign urging spouses to learn their rights and duties as family law evolves. Major reform has been under way since 2005. Mrs al Qubaisi said previous incarnations of family law had "many downsides" that were often abused by both husbands and wives. She said an overhaul of the law was needed to prevent family disintegration. "The family law should ensure the equality between men and women," she said.
"Both of them can take advantage of it, because some of it is biased against men and some other parts are biased against women." The deferred dowry case came from the Northern Emirates where a wife filed for divorce on the grounds that her spouse was abusive. Her demands, according to a court document released last week, included Dh60,000 for the deferred dowry; Dh6,000 per month for her marriage allowance - a monthly payment that husbands must make to their wives under Sharia; and Dh50,000 as an allowance for the 40-day period after their divorce during which the wife cannot re-marry, known as Nafaqat al Idda. The deferred dowry is a portion of the marriage dowry money that goes to the wife after the divorce. Two arbiters ruled the husband was abusive and that the wife was not. "It has become clear to the arbiters that there was neglect, avoidance and discomfort on the part of the husband towards the wife," the document states. "This has affected their relationship and caused psychological harm to the wife, making it impossible for the marriage to continue." The husband, the arbiters found, had not paid the required monthly allowance since November 20, 2008, when the couple married. He also deserted her. On December 10, 2009 a Court of First Instance annulled the marriage on the condition the wife forfeit her right to the deferred dowry. The court rejected all her other demands. The wife appealed, and the Appeals Court upheld the lower-court verdict. The woman then appealed to the Federal Supreme Court. The Supreme Court struck down the other verdicts and granted the wife all of her demands. "The dowry is the right of the wife; she can use it in whatever way she wants," wrote Justice Falah al Hajeri of the Supreme Court in the ruling. "If the husband was abusive, even if she is the one who asks for a divorce, or both of them asked for it, they should be separated without exempting the husband from paying any of her marriage or divorce dues. Marriage allowance is estimated from the time the husband stopped paying it, and should be considered as a debt that he has to pay." Ms al Qubaisi predicted the verdict would "reduce violence and exploitation often practiced by husbands". She said the current family law needed such legal precedents to move forward. "A large number of women sacrifice themselves and all that they have in order to get a divorce," Ms al Qubaisi said. Deferred dowries are usually set high to deter husbands from spurious divorce. Husbands, Ms al Qubaisi said, have often circumvented the marriage agreement by pushing wives to file for a divorce and therefore exempting their husbands from any fees. Dr Ahmed Alomosh, a professor of applied sociology at Sharjah University, agreed the ruling would reduce abuse against women, which he suggested was widespread. "Husbands here who want to divorce their wives do not usually resort to physical violence, but to psychological or neglect abuse," said Dr Alomosh. "Husbands have the latitude to marry a second wife, but the wife does not [have the ability to marry a second husband], so eventually she will surrender and ask for divorce." hhassan@thenational.ae
