x Abu Dhabi, UAEWednesday 22 November 2017

New Abu Dhabi divorce and mediation system could mean an end to hefty legal fees

Faith-based mediation outside court to be largely free

Barney Almazar, a director at the legal practice Gulf Law. Jeffrey E Biteng / The National
Barney Almazar, a director at the legal practice Gulf Law. Jeffrey E Biteng / The National

A major change to family law could see divorcing couples spared tens of thousands of dirhams in lawyers' fees, legal figures have said.

As The National reported this week, non-Muslim couples will be able to get married and divorced through churches of their own faith, rather than Abu Dhabi courts and Sharia.

Couples will be able to have one of their religious leaders carry out mediation out of court, after which they reconcile or divorce. The court's only involvement is to record and make the outcome official.

The option not to go through civil courts under sharia is expected to have a significant effect on the legal sector.

“Firstly, court fees will be eliminated and secondly, you won't need a lawyer," said Barney Almazar, a director at the legal practice Gulf Law.

"Lawyers are optional. but normally you need a lawyer during divorce proceedings, particularly if the other party is contesting and has their own lawyer.”

It typically costs each party involved about Dh30,000 to hire a lawyer but the costs can be much higher, depending on the length and complexity of each case.

Another saving, Mr Almazar said, is for legalisation and translation.

“If you get married, you have to go to the embassy and get the certificate stamped and then to the ministry of foreign affairs and then to the Abu Dhabi Judicial Department," he said.

"You have to get all your documents translated and you are charged per page. In addition to all that, there are the court fees.”

As reported on Sunday, judicial officials have been meeting with Christian leaders but there are plans to involve other faiths soon, including the Hindu and Sikh leaders.

“The church covers the cost of counselling and mediation,” said Pastor Joseph Faragalla, head of the Abu Dhabi Arabic Evangelical Church, when asked about the costs of the process. It is expected a small fee of several hundred dirhams is paid to the court for the divorce finalising process.

At the start of the potential divorce, couples will be asked to sign a document stating whether they chose the Abu Dhabi civil court process under sharia, the laws of their home country, or the mediation process that will be provided by places of worship.

“The advantage of using arbitration to settle family disputes [through the church] is that the couple does not need to hire a lawyer," said Hesham Elrafei, a lawyer and advisor to the Abu Dhabi government.

“The arbitrator has plenty of space and flexibility to settle the dispute without being limited nor trapped by the rigidity of legal provisions, putting the family and the kids' best interests first."

As the judicial authority and church leaders said this week, they are keen not to make divorce easier, but wish to seize the opportunity to save marriages. But regardless the option to divorce remains. The new option is an alternative to mandatory mediation sessions with court counsellors, often conducted in Arabic with translators present, which is unexpected for many couples.

“In addition to the cost-efficient factor, it's also quicker. While family disputes before a normal court can last up to three years of legal battle, family arbitration cases can be settled in a few months, especially that the decision is final and the parties cannot appeal it," he said.

"This does not only save the couple money and time, but also protects their kids from the negative impact of the long and stressful litigation fights."

A further advantage is privacy, he suggested.

“If you go to court it's a public proceeding," Mr Elrafei said.

"Almost everyone will know that you have a family dispute, from the public waiting area of the reconciliation sessions to the public court hearing. This is not the case for religious mediation, where it's held privately in the church or any other chosen place of worship

"In addition, secular couples can always use this new service, as it's done by mediators specialised in marriage counselling, sociology and psychology.”

Last month, a personal affairs court was established for non-Muslims which includes a registry that allows expatriates to state where their assets go when they die.

Until then, Abu Dhabi had no way of registering wills drafted in the UAE or an expat’s home country.

“Abu Dhabi is leading the Middle East when it comes to judicial innovation. International best practices are increasingly turning to private, faith-based dispute resolution to arbitrate their disputes rather than the normal courts," Mr Elrafei said.