СТА - ведущая юридическая компания в Дубае с офисами по всему мируhttps://www.stalawfirm.com/ru.htmlSTA Law Firm - Блоги - Family LawruCopyright 2024 STA Law Firm All Rights Reserved<![CDATA[Inheritance Law in the UAE]]> Inheritance Law in the UAE

"A leader's lasting value is measured by succession."

                                                                          -John C. Maxwell

The afore-stated quote is apt for a while discussing the laws of inheritance as these laws help understand the nuances of devolution of property among the 'deserving' legal heirs of the testator/deceased. The Civil Transactions Code, often known as the Civil Law and the Personal Status or Personal Law, governs the law of inheritance in the UAE. Both were conceived from the Shariah Law, which is considered a grand norm for inheritance laws in the UAE. The said laws are applicable to all UAE Nationals, but the laws also provide cases where the devolution of property of a non-Muslim takes place. This will be discussed in detail in the following sections.

A non-Muslim foreign national has been given the option of avoiding Shariah Law application and the devolution of his property by his individual State Law. Accordingly, Article 17 of the Civil Law specifies that the testator's law shall govern his inheritance at the time of the testator's death. It is critical to comprehend the concept of inheritance, which is defined under Article 313 of the Personal Law as the transfer of financial and property rights to those deserving following the testator's death. It must be noted that UAE, being a common law country, does not provide for the 'right to survivorship,' i.e., suppose there is a property owned jointly by two people and one of them dies, then the right to decide the manner of disposal of the property shall pass on to the courts. It must be noted that the testator's death marks the beginning of the litigation over the estate, as was rightly quoted by Ambrose Bierce.

Devolution of Estate of the Deceased (Muslim)

Under the Shariah Law, the legal heirs and the descendants of the deceased have the right to claim the estate, and it is upon them that the property to the deceased shall devolve. If the said non-Muslim, the property shall devolve based on the community law they belongs. In case the said non-Muslim has created a will, then the property shall devolve based on the specifications provided under the same to the beneficiaries as mentioned in the will.

In the case of a deceased Muslim, the property devolution takes place only based on the principles enshrined under the Shariah Law. These principles require that the heirs of the deceased should be determined, and two male witnesses should confirm the same. The heirs are also required to show documents like marriage certificates, birth certificates, etc., and submit them as evidence. Once the testator dies, all his rights and liabilities pertaining to the estate are divided based on the Shariah law. These include all the rights and liabilities like debts of the deceased or usufructs in the property. The principles of Shariah law provide that the heirs of the estate of the deceased shall be the following:

  • Children
  • Spouse 
  • Siblings
  • Grandchildren
  • Grandparents
  • Aunts and Uncles
  • Cousins

The restrictions under Shariah law pertaining to the people to whom the estate shall not devolve on the death of a Muslim Testator includes a person murdering to get a share in the estate of the deceased, a divorced woman, provided she is not assuming iddah, an adopted child, an illegitimate child, a non-Muslim. There is a Yiddish Proverb that "the one who comes for inheritance has to pay for the funeral expenses as well." Similarly, as per the law, the property or the amount that shall be devolved upon the legal heirs would be the amount after excluding the funeral expenses of the testator.

Devolution of property through Will (Muslim)

Muslims can draft a will for bequeathing their properties under the Shariah laws. But the portion that can be devolved through a will is only 1/3 of the property. If he wishes to bequeath more than 1/3 of his property, then all the legal heirs' written consent is required. Further, if the testator bequeaths more than 1/3 of his property without the consent of his legal heirs and dies, then again for the execution of the excess property, a no objection is required from the legal heirs. If the heirs do not consent for the same, the property shall be devolved as per the laws of Shariah. Also, apart from the 1/3 property that can be bequeathed through will, the rest of the estate shall devolve only as per the Sharia laws.

Devolution of Estate of the Deceased (non-Muslim)

If a non-Muslim foreign national dies intestate (i.e., without any will), their property shall be divided among their legal heir as per the Shariah laws. Initially, we saw that Civil Law Article 17(1) provides that inheritance of such a person shall be based on the law of the deceased. Still, an extension to this provision is provided under Article 17(5) of the Civil Law, stating that if such a non-Muslim foreign national has his property located in UAE, then his property devolution shall be as per Shariah laws with respect to those properties located in the UAE. Now, there is another proviso as well. Personal law Article 1(2) states that if the non-Muslim wishes that his property be devolved based on his State's law with regard to the properties in UAE, the said person has to elect for the same. The legal heirs of the deceased can apply for an application for the same in court.

Once the Legal heirs apply for the property of the deceased non-Muslim to be devolved as per his state law, they are required to submit some documents, including the death certificate, will of the deceased non-Muslim, his last domicile, and the judgment for execution from a court of competent jurisdiction translated to Arabic, if any, as per Article 276 of Personal Law. Irrespective of these provisions, there remains ambiguity regarding the application of State law or Shariah law because both the Personal Law and the Civil Code are contradictory. The will of a non-Muslim can be created in UAE, and for this will to be recognized in the UAE courts, it is required that the will be notarized as well as registered in the Judicial Department of the Emirate. As stated previously, the personal law allows a non-Muslim to dispose of his UAE properties as per his wishes; the DIFC established the Dubai International Financial Centre (DIFC) wills and probate registry.

Devolution in case of Joint accounts

In a case where a UAE account is held jointly by two people and one of the people dies, then the surviving partner is required to intimate the bank within ten days from the date of the death of the deceased, and once notified, the bank freezes the account till the successors are appointed, and the court has decided the portions of the shares of the heirs. This is governed by another law, namely the Commercial Transactions Law/ Commercial Law. The procedure of devolution shares of a joint account is provided under Article 379 of the said law.

Transfer of Shares on death

In such a case, if the company was established in the UAE, the transfer would be as per the Shariah Laws if no documents have been provided. If the company in question is a Limited Liability Company, then the shares of the company would be transferred to the heirs of the deceased provided that there is no specific clause under the MOA or shareholder's agreement and the deceased is a local. In other cases, like Joint venture or sole proprietorship, etc., the transfer of shares shall be as per the Shariah laws, i.e., the UAE laws. This is because there is no right to survivorship in UAE. Thus, the share in such a case shall not be directly transferred to the surviving partner or the family members. Usually, in such a case, it is better than the specifications regarding the transfer of shares in case of death of the shareholder has been specified under an agreement between the shareholders with their consent to prevent any ambiguity in the future. Therefore, these are the inheritance that is followed in the UAE.

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Mon, 07 Mar 2022 21:14:00 GMT
<![CDATA[Family Law in GCC]]> Family Law in GCC

A Family is formed by considering several factors like the social, political, and monetary.

Similarly, there is a legal design in framing a family. In a net shell a family law covers two fundamental fields one is the relationship between spouses and the other is the relationship between parents and their children. For many years Muslim nations were aiming to change the rules governing marriage and divorce.

Kuwait 

In Kuwait, family and personal law are governed by religious courts. The cases will be judged only by the code of law not by any previous judgments. The courts will never be influenced by precedents. The Kuwait family law contains 347 articles and the code was enacted in 1984. It consists of codes to deal with marriage, divorce, child custody, and inheritance. To handle family and personal matters there are different courts for both the Sunni and Shi'a.

In Kuwait, Muslim marriage is an agreement between the groom and the representative of the bride's family. The marriage is formalized in the presence of an authorized person and two male witnesses.  The bride's representative can be her father, brother, uncle the officiator of the marriage can also sever as her legal representative.  The officiator prepares the agreement and this is signed by the groom, the bride's representative, the witnesses, and the officiator. The agreement also includes the details of the number of wives the groom has as the Islamic religion allows a man to have up to four 6wives of he is able to support them equally. It also contains the dowry amount.

In Muslim countries the Islamic law allows husbands to divorce their wives just by "I divorce you." Without any reasons   Under Shi'a law, to get a divorce officially the man must appear before a judge. Under Sunni law, divorce needs to be recorded only with the registrar of the personal affairs court. In both systems judges usually grant a divorce petition after giving reasonable opportunities to reconcile out of court and to seek counselling before deciding on divorce. The husbands are required to pay monthly alimony for each child born of their marriage.  In custody issues favors the mother for small children and Girls to live with their mother until they get married.  Boys can choose after attaining puberty whether to reside with their mother or father. 

Bahrain

In Bahrain, both Sunnis and Shias have their own courts that deal with personal and family issues. The Family Law comprises of all matters arising in connection with marriage like dowry, maintenance, parentage, separation, and custody. Influential sections of the religious establishment oppose a codified family law, while the government has recently demonstrated a lack of interest in pursuing the matter.

The main problem is that there are rules and norms but that they are not codified. For getting a divorce, women also need to face significant legal, financial, and societal difficulties. The Sunni men announce their divorce orally, while Shia men record their intention in writing. A Bahraini man can divorce his wife for any reason while women can only request divorce under specific circumstances but it is possible without the burden of evidence. A judicial divorce takes years during this time women are not supported financially.

Divorced Shia women retain physical custody of their sons until they are seven and their daughters until they are nine. The new personal law allows Sunni mothers to retain custody of daughters until they are 17 years of age or married whichever comes first and sons until they are 15 Even if the mother has custody, the father remains as the children's legal guardian. For custody of children, the Bahraini courts consider the religion, permanent residence, income of parents. The parents can visit their child by prior arrangement of the competent court. 

Saudi Arabia

The jurisdiction of family-related matters falls in Sharia Court. Family related matters include marriage, divorce, children and inheritance. The laws are not codified. The government promotes polygamy as an Islamic value program. Polygamy is limited to four wives for men at any one time. As a result of oil wealth, the practice of polygamy has increased even among educated Hejazis. In 2001, the Grand Mufti the highest religious authority issued an opinion, that to fight against spinsterhood polygamy is very much essential in the context of Islamic Value. Later in 2019 marriages under the age of 15 were banned and prior permission from the specialized court was necessary for the marriages under the age of 18.

Men have the right to divorce their wives without any legal justification.  The husband has to provide financial support for the divorced wife.  A woman can only obtain a divorce with the consent of her husband and, it is very difficult to obtain a judicial divorce. The fathers will have the right to have custody of sons from the age of 7 and daughters from the age of 9.

Oman

 Article 17 in Oman's Basic Law gives liberty for women to marry freely but the Personal Status Law will be the authority in dealing with guardianship, child custody and inheritance. According to Sharia law, if a Muslim man can afford the expense to take care of four wives he can get married to four wives. A Muslim woman can restrict her husband from marrying other women by entering a clause in the marriage agreement.

A man can divorce by simply saying 'I divorce you' three times. But in the case of a women even if she has good reason to seek a divorce she must go to a court. The husband is responsible to give maintenance to the divorced wife and his children from the marriage. The man can claim only after the son attains the age of ten.

Qatar

As per Sharia Law, a Muslim man can marry four wives if he is able to take care of them materially. In Qatar, the Muslim marriages are performed at the Sharia Court. A married Qatari Muslim man seeking a divorce by saying 'I divorce you' three times to his wife. The husband has to give maintenance to a divorced wife and his children from the marriage. In Qatari courts the provisions for divorce and family law matters are dealt within the code Family Law 22 of 2006.

 United Arab Emirates                                   

The UAE had improvised its family law. And it was announced on 7th November 2020. The crisp of the amendment is that the Islamic law of the Sharia will no more be used for dealing family law for the non-citizens.

There are many amendments to the country's family law. Law No. 28 of 2005 was overruled resulting in Decree-Law No. 5 of 2020 on August 28, 2020. These provisions look in the following matters. The financial support by the husband to wife, divorce by proxy, arbitration between the husband and wife and financial compensation. Earlier, Sharia law was applied to Muslim marriages, child custody issues, inheritance, maintenance etc. Till the amendment, the law allowed for non-citizens to be given option to select Sharia for their divorce proceedings or to request the court to follow the law of their home country.

Conclusion

 Family is formed by various social, political, and monetary aspects. All GCC follows Sharia law for managing the matters related to the family. The husband is given more privileges than the wife. The Man can easily divorce his wife proclaiming Talaq and he can marry four wives if he is able to take care of them and their households. Now, these nations are aiming to change the rules governing marriage and divorce.

 

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Sat, 06 Nov 2021 00:00:00 GMT
<![CDATA[Economic and Fraud Provisions in Middle East]]> Economic and Fraud Provisions in the Middle East

"There is one and only one social responsibility of business – to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud."

- Milton Friedman

Economic fraud is a term that has been repeated over the years, so much so that the consequences it bears do not have any precedence or impact on the ones that hear it. For many companies and capitalist machinery, this term essentially triggers them to explore options to hide their fraudulent tracks and continue operating in the same manner. To have governments help them cover the tracks in certain jurisdictions ultimately defeats the purpose of the assignment.

Despite the incongruent activities of individuals, companies, and governments from the expected norm of justice in many jurisdictions, other countries are tenacious to implement a regulatory framework that will eradicate such fraudulent activities in the market. This article will discuss the economic and fraud provisions established in the Middle East, their effectiveness, and the scope of reach it possesses about financial crime.

What are the Economic and Fraud provisions in the Middle East?

If one area of the economy has seen a steady increase in the past years, it would be the economic fraud prevalent in society. Regardless of the number of provisions that jurisdictions and international organizations establish to combat financial fraud, none of them seems sufficient. The parties involved in economic fraud and other fraudulent practices are constantly evolving to cover their tracks efficiently.

Infamous scandals like Bernie Madoff and the Ponzi scheme leave one in absolute awe as it remains unclear, what is the culprit: the crime or the criminal? Many innocent parties, including employees and clients, were adversely affected by the ill-doings of these financial schemes. After the outburst of many scandals and its impact on many innocent individuals, jurisdictions are trying to fasten their pace to stay a step ahead of wrongdoers and hopefully eliminate the potential threats in the market.

The introduction of new anti-economic fraud regulations has paved the way for potential investors to feel a sense of security over their investments within the market, along with the ability of the regulations to enforce justice. Over time, people have understood that the formation and establishment of an anti-fraud legal framework are not sufficient to ensure peace and harmony in the market, an iron fist must be imposed on fraudulent parties and companies to deter them from doing such activities in the future and serving it as a lesson for other participants in the market who bear similar intentions.

The types of economic fraud can be quite varied and are spread across different industries and the scope of nature. These could include housing benefit fraud, tenancy fraud, council tax fraud, blue badge fraud, social care fraud, business rates fraud, insurance fraud, bribery, and money laundering. These are just a top layer of economic crimes prevalent in an ocean of fraudulent activities in the market. The crimes that are more coherent to the wrongdoings in the market include not declaring the business location, stating that a property is not in use while it is, dishonestly requesting for an exemption to pay for charges that are owed, or any unauthorized movement of money to make ill-gains.

Often, economic crime is caused not by companies but by customers towards companies. The highest reported crime boost in the Middle East is through customer fraud and procurement fraud, which have proved to be the most disruptive fraud within an economic crime. In a survey conducted on a global platform, the number of customer frauds was comparatively more in the Middle Eastern region.

In an ongoing effort to combat fraud together, many companies in the Middle East began investing in more stringent controls and implementation of the rules to avoid economic crime, while many others conducted a thorough examination into reasons after the occurrence of a crime in the company. Another issue that stands alongside customer fraud about its prominence is procurement fraud. This fraud entails the practice of favoring associates with vendor and supplier contracts.

All these efforts are measures taken to mitigate the risks involved and ensure that proper prevention is taken by instilling the right technology and talent to deviate from any fraudulent prone routes.

However, it is not easy to ensure that accountability will be maintained and transparent feedback is provided. Another limitation of this procedure is that advanced technologies to combat financial crime can be costly, which would further deplete if the company possesses insufficient resources to acquire and install the platform and is not equipped with properly trained employees to manage the technology. The lack of proper expertise to handle the in-place technology could attract various cyber threats, which allows a wrongdoer from any part of the world to infiltrate the company's system.

With this in mind, companies must equip themselves from the arsenal of defenses to protect themself and the financial and reputational facets of the company. The extent of damage that infiltration of the company's system can cause to the operations is quite unfathomable. It would be better for companies to leave their vault of secrets wide open than installing an IT platform that is managed poorly. The necessity of combating such insecurities is proliferating and must be countered at the earliest. One would like to believe that the efforts of the legal jurisdictions in the Middle East to battle economic crime are practical and promptly applied. However, many of the jurisdictions still fail to provide a proper implementation of the provisions established against economic crime.

The readiness of companies in the Middle East to confront the indecisive nature of economic crime and report any issues as they arise is still moving at a stagnant rate. The stark increase in cyberattacks and its potential threats is not a mystery to the companies in these regions. Nevertheless, they decide against preparing themselves in defense of such risks and attacks. The firms in the region and the governmental organizations must understand the types of threats that could arise in the economy and the nature of such economic crimes. Although this would seem like an insignificant step, this particular action could help achieve a more profound revelation of the gaps and vulnerabilities of the economy and its protective framework.

Many would argue that the relationship of the Middle East with economic crime and fraud dates back ages. All the glitz and glamour and the boom of economies are incongruent with the fraudulent activities occurring within the firms and regions. A region's legal systems cannot enforce the regulatory frameworks established to fight against economic crime if the country's government does not implement the rulings.

To know more about Economic and Fraud Provisions in the Middle East in Singapore Click here 

 

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Thu, 30 Sep 2021 14:28:00 GMT
<![CDATA[marriage Hindu Law India Divorced in UAE]]> Insight: Can a person be married under Hindu Law in India and get Divorced in UAE?

Introduction

The number of expatriate Indian couples in the UAE filing for divorce in the UAE rather than in India is rising. Many couples cite the effectiveness of the court system, knowledge of the rules, and legal counselling as reasons for their decision.

People who were married outside the UAE and current citizens of the UAE may typically apply for divorce using civil procedures or according to their own religious beliefs. Contrary to common opinion, many expats choose to have their divorces processed via the UAE court system because it is quicker and less costly in the long run. Divorces in the UAE can be completed in as little as one month if all parties agree.

It should be remembered that divorce decrees for Muslim marriages can be obtained under Sharia Law, while divorce proceedings for non-Muslim marriages can be obtained under Federal Law No. 28 of 2008, also known as the Personal Status Law. The non-Muslims are permitted to use personal laws of the country in which their marriage was solemnized under this policy, as long as they have legalized versions of their country's rules translated and authorized by a translator and the Ministry of Justice.

"Unless non-Muslims have special provisions applicable to their community or confession, the provisions of this law shall extend to people of the United Arab Emirates. Unless one of them requests the application of his rule, they shall apply equally to non-citizens," the Personal Status Law of the UAE stated. In the meantime, those who have been bound by interfaith or government marriages will demand a divorce by presenting a legitimized version of India's Special Marriage Act of 1954. By sending a validated translation of India's Foreign Marriage Act of 1969, foreigners or Indians who were married in an Indian Embassy or Indian Consulate abroad may apply for a divorce.

Individuals must first present an application and a marriage document to the Family Guidance Section of the Personal Status Court. A counsellor will listen to the individuals' resentment and work to get both parties back together in order to save the marriage. When either or both parties do not wish to join forces, the attorney will ask both parties to bring settlement and divorce terms to the meeting.

Divorce laws for Muslim couples

Sharia law is the law that governs Islamic marriages. If both the husband and the wife are Muslims who live in the UAE, Sharia/UAE law will almost certainly rule their divorce. If the husband is a Muslim and the wife is not, the case is likely to be the same.

Divorce laws for Non-Muslim couples

In a recent case of Supreme Court, the court of cessation applied international law in a divorce case, citing Article 13 of the personal status law. According to Article 13, either party has the right to ask the court to apply international law (i.e., the law of the country where the marriage was contracted) to their divorce. Article 16 covers all substantive issues relating to guardianship, trusteeship, and preservation, as well as other mechanisms defined for the welfare of persons in need of protection. Prior to making a decision in a landmark case, the Supreme Court allowed an unattested legal translation that is in Arabic of the Hindu Marriage Act at the behest of one side.

In reality, the recent trend has consistently demonstrated that applying foreign laws, especially in family matters, is a difficult task. In general, international laws are effectively implemented. Foreign laws cannot be enforced if they are in violation of public order, morality, or Islamic Sharia, according to Article 27 of the Civil Procedure Laws. Though cruelty was one of the grounds for obtaining judicial separation under the Hindu Marriage Act of 1955 as originally enacted, it was not a ground for obtaining a divorce. Cruelty became a basis for divorce and judicial separation after the amendment.

Only cruelty is stated in clause 13(1)(a) of the Hindu Marriage Act, and it is not defined if it is mental or physical cruelty. The courts have interpreted it broadly, stating that it encompasses both physical and mental harm, and we are dealing with the latter in this case. An annulment is a legal concept that applies to the process of rendering a voidable marriage null; if the marriage is void, it is automatically null, but a legal declaration of nullity is necessary to prove this.

A civil process for making a marriage null and void is an annulment. It is rarely given, with the exception of bigamy and not meeting the minimum age requirement for marriage. If such legal conditions were not fulfilled at the time of the marriage, the marriage can be considered null and void. In the eyes of the law, if these legal provisions are not fulfilled, the marriage is deemed to have never happened. This is referred to as an annulment.

It differs from divorce in that an annulled marriage never existed in the first place, while a divorce dissolves a previously existing marriage. As a result, unlike divorce, it is retroactive: an annulled marriage is no longer considered valid. It is necessary to remember that annulment will result in a violation of UAE criminal law; as a result, UAE courts are unlikely to apply the same interpretation as Indian courts. Section 13B of the Hindu Marriage Act provides for a divorce by mutual consent. A couple will get a divorce if they file a joint petition claiming that they have been living apart from each other for at least a year and have mutually agreed to end their marriage. The court then gives them a six-month cooling-off period before the final petition is decided by the family court. This six-month waiting period is established to give couples time to rethink their decision to make sure they both want to end their marriage.

Marriages that are invalid

When a marriage is prohibited by statute, it becomes invalid and is immediately annulled. The Hindu Marriage Act of 1955, Section 11, deals with:

  • Marriage between relatives who are close

Except for marriages allowed by existing customs, a marriage between an uncle and a niece, an aunt and a nephew, or a marriage between first cousins, whether the relationship is by half or whole blood, is considered void.

  • Bigamy

The marriage is invalid if either partner was legally married to another person at the time of the marriage, and no formal annulment is required.

  • Divorce and nullity of marriage

Any marriage solemnized after the effective date of this Act is null and void and may be proclaimed as such by a declaration of nullity on a petition filed by either party against the other party if it violates any of the conditions set forth in Section 5 clauses (i), (iv), and (v).

  • Inter-family Marriage

A union between a brother and a sister, or an ancestor and a descendant whether by half or whole blood or by adoption.

Marriages that are voidable

An annulment is not compulsory in a voidable union, and one of the parties must obtain it. In general, one of the parties to marriage could demand an annulment if the intent to enter into a civil contract of marriage was not present at the time of the marriage, whether due to mental illness, intoxication, duress, or fraud.

The Hindu Marriage Act of 1955, Section 12, deals with voidable marriages:

  • Any marriage solemnized before or after the effective date of this Act is revokable and may be annulled by a decree of nullity on any of the grounds mentioned below;
  • since the respondent's impotence prevented the marriage from being consummated; or
  • that the marriage is in violation of the condition set out in Section 5 clause (ii); or
  • that the petitioner's consent was obtained by force or fraud as to the nature of the ceremony or any material fact or circumstance concerning the respondent, or where the consent of the petitioner's guardian in marriage was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or fraud as to any material fact or circumstance concerning the respondent; or
  • that the respondent was pregnant with someone other than the petitioner at the time of the marriage.
  • Despite the provisions of subsection (1), no petition for the annulment of a marriage may be filed.
  • If a claim is made based on clause (c) of sub-section (1), the claim will be considered if;
  • The petition is filed more than a year after the force ceased to exist or, in some cases, after the fraud was discovered; or
  • since the force had ceased to function or, as the case may be, the fraud had been detected, and the complainant has lived as husband or wife with the other party to the marriage with his or her full consent;
  • unless the court is satisfied that the ground stated in clause (d) of sub-section (1) is true;
  • that the petitioner was unaware of the evidence claimed at the time of the marriage;
  • that, in the case of a marriage solemnized before the commencement of this Act, proceedings were instituted within one year of the commencement, and in the case of marriages solemnized after the commencement of this Act, proceedings were instituted within one year of the date of the marriage; and
  • that no marital intercourse has taken place with the petitioner's consent since the petitioner discovered the presence of the said land.
  •  Divorce eligibility criteria

    Although divorce is legal in Islam, Sharia law makes it more difficult for squabbling spouses to end their union unless the judge is persuaded the marriage is doomed to fail. A civil process for making a marriage null and void is an annulment. It is rarely given, with the exception of bigamy and not meeting the minimum age requirement for marriage.

    As previously mentioned, the conditions for Muslims and non-Muslims seeking a divorce in the UAE differ to some degree. As a result, in order for a non-Muslim to apply for divorce in the UAE, all parties must be UAE residents, and they must be able to file for divorce in their home country under their home country's laws. Another important factor for non-Muslim couples living in the UAE who want to divorce is that they can either file a divorce petition based on their home country law, as per Article 1 of Federal Law Number 28 of 2005 (Personal Status Law), or they can register the case under Shariah Law. If both or either party is a Muslim, however, the divorce case can only be filed under Sharia Law.

    Divorce Procedures in the UAE

    Divorce in the United Arab Emirates is reasonably straightforward. In fact, if the parties can reach an agreement quickly, the process can be completed in as little as a month. This is called as a mutual consent divorce, and it does not require either party to have legal reasons for the divorce because they have reached an agreement. The first step is to apply for a divorce with the Family Guidance Section of the relevant judicial department in one of the emirates where you live.

    Conciliation is the first step in the divorce process. The couple will try to sort out their differences or, at the very least, find an agreement at this stage. Your marriage certificate and contracts, as well as passports for both spouses and any children, and birth certificates, will be required. Each text should also be translated into Arabic. This stage is limited to three months by statute. After that, there are two options for moving forward.

    If the parties are unable to reach an agreement, the matter will be heard by the First Instance Judge. Following the filing, the defence will respond, and the initiating party will respond; this process will continue until the judge makes a decision on the case. Both parties may opt to have a lawyer represent them, but it is not required. Cases are also heard in Arabic, but an interpreter would be given by the court. After the judgment is rendered, either party has 28 days to file an appeal. The Appeals Court follows the same procedure as the First Instance Court, with the exception that the case is heard by three judges.

    The case will be transferred to the Court of Cessation until the final judgment is rendered. To make sure that due process is followed, the court will review all records related to the case. At this point, you won't be able to present any new facts. After that, the matter will be heard by the Enforcement Court. The court then executes the decision and guarantees that both parties adhere to the judgment and settlement agreements. If the parties reach an agreement during the conciliation period, the case will be sent directly to the Enforcement Courts, bypassing the court system.

     

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    Thu, 08 Apr 2021 10:08:00 GMT
    <![CDATA[Federal Law towards Family Law]]> Amendments by Federal Law Number 8 of 2019 towards Family Law

    The Abu Dhabi Statistics Centre (ADSC) had revealed that about 30 percent of the divorces that took place in 2018 in the United Arab Emirates (UAE) was dissolved within the first year of marriage. A total of 5,467 marriage contracts were registered in 2018, indicating a 6 percent annual increase of marriages since 1979. The ADSC pointed out that the number of registered divorce cases rose to 2,025 in 2018 from 1,859 in 2017, an annual increase of 4.2 percent since 1975. Whereas 28.5 percent of marriages ended in divorce within the first 12 months, which equates to 1,558 of marriage contracts, 62.2 percent of divorces took place within the first four years of marriage. 

    As we progress through 2020, the government of the UAE has issued some symbolic amendments in the UAE Family law, especially towards divorce and custody cases by virtue of Federal Law Number 8 of 2019 amending Federal Law Number 28 of 2005 concerning the Personal Status Law in UAE (the "new Law").  

    1) The text of Article 118 was replaced by virtue of Article 1 of Federal Law Number 8 of 2019 dated 29/08/2019 dealing with divorce. It is known that each of the two spouses is entitled to request for divorce due to prejudice that is making the continuity of the friendly companionship between them impossible. Article 118 of the new Law states that if the prejudice is not established, the lawsuit shall be rejected, and if the discordance is still continuing between the spouses, then the aggrieved party may file a new lawsuit. If the Family Orientation Committee does not succeed to reconcile them, a judgment shall be issued by the judge to appoint two arbitrators from among their parents, after requesting each of the spouses to nominate his/her arbitrator from among his/her parents, or contrarily from those who have the ability and experience to reconcile. However, if one of the spouses procrastinate in nominating his/her arbitrator or abstain from attending this hearing, the judgment shall not be subject to any appeal. The arbitrator appointed by the court under Article 118(2) is under an obligation to issue an order within a period of 90 days from the date of appointment. The two arbitrators along with the parties to the litigation of the judgment appointing the arbitrators shall be notified by the court, and each of them shall be asked to take an oath to perform the assignment with equity and honesty. 

    2) The text of Article 120 of the new Law states that if the two arbitrators fail to reconcile the spouses, the court shall present the arbitrators' recommendations to the spouses and invite them to reconcile before issuing the judgment of separation. If the couple reconciles despite the two arbitrators' recommendation of separation, and a judgment is not issued yet therein, the court shall confirm the reconciliation.

    Nevertheless, if reconciliation between the two spouses is not possible, the following scenarios can occur: 

  • Should the offense be entirely from the husband's part and the wife is seeking the divorce, or both parties are claiming for separation, the arbitrators shall decide a non-retractable divorce without prejudice to the rights of the wife resulting from marriage and divorce.  
  • If the offense is entirely from the wife's part, the two arbitrators shall decide to divorce them for a consideration deemed adequate by them and payable by the wife unless the husband requests to maintain the marriage. The court shall take into account the interest of the family. 
  •  Where both parties participated in the offense, the arbitrators shall decide on their separation without consideration or with one in proportion to each one's share in the offense. 
  • If the case is not clear as to who is the offender among the spouses and if the husband is the claimant, the arbitrators shall recommend dismissal of his case; but if the wife or both of them are claiming separation, the arbitrators shall decide either separation without consideration or refuse their separation, as they deem appropriate for the interest of the family and the children. 
  • 3) As per the text of Article 121 of the new Law, the two arbitrators shall submit to the judge their reasoned decision that shall include the extent to which each of the spouses offended the other. The judge shall rule according to the recommendation of the two arbitrators if they reached the same opinion; otherwise, the judge shall appoint other arbitrators, or add a third whose opinion shall prevail. The judge shall amend the recommendation of the two arbitrators where it violates the provisions of the new Law. 

    4) The new Law further describes circumstances under which the wife can be considered guilty pursuant to Article 71. The text of Article 71 of the new Law relates to the instances when the alimony to the wife is forfeited. These instances are, 

  • If she refuses to give herself to her husband or refuses to reintegrate the conjugal domicile without an excuse accepted by the Sharia. 
  • Should she abandon the conjugal domicile without an excuse accepted by the Sharia. 
  • If she forbids her husband to enter into the conjugal domicile without an excuse accepted by the Sharia. 
  • If she refuses to travel with her husband without an excuse accepted by the Sharia.  
  • If a judgment or decision is rendered by the court, restricting her freedom, in a matter to which the husband is not entitled, and the said judgment or decision is in the process of execution.
  • 5) Article 72 has been amended stating that the following shall not be considered a transgression to the duty of obedience: 

  • If she goes out by virtue of Sharia or custom or as necessary, or  
  • If she works according to laws, regulations and customs,  
  • and the judge shall take into account the family's interest. 

    6) Unless otherwise stipulated in the contract, the spouses shall live in the conjugal home and in the event of a dispute between the spouses, the judge shall take into account the interest of the family as per Article 75. 

    7) Article 30 of the new Law states that the capacity to marriage is completed by reason and maturity. The age of maturity is considered as eighteen years completed unless the person concerned matures earlier in conformity with the law. A person who legally matures before reaching the age of eighteen, he/she shall not marry except in accordance with the regulations issued by a Cabinet decision upon the proposal of the Ministry of Justice. However, should the person having completed the age of eighteen request marriage but had failed to obtain the approval of his tutor, he may refer the matter to the judge. The judge shall then fix a period for the tutor and if he fails to appear, or his opposition to the marriage is not convincing, the judge shall approve the marriage. 

    8) The text of Article 56 of the new Law lays down the rights of the husband towards his wife, as follows: 

  • House supervision and preservation of its contents. 
  • Suckling his children from her unless there is an impediment. 
  • Any other rights prescribed by Sharia. 
  • ]]>
    Fri, 05 Jun 2020 11:35:00 GMT
    <![CDATA[Inheritance under Shariah Law]]> Inheritance under Shariah Law

    The United Arab Emirates Law of inheritance is very broad. It is suitable for not only Muslims but can be applied to inheritance cases involving people of any religion and nationality. Sharia law, without question, applies to all Muslims; however a non-Muslim foreign national may choose to have his estate either be administered under Sharia Law or can opt for the law of their nation of origin. The Law of Shariah is open for modification and further interpretation. Further, as the United Arab Emirates (UAE) is a civil law jurisdiction, the effect of precedents is invalid when compared with common law jurisdictions. The UAE does not pursue the right of survivorship, wherein the mutually possessed property is given to the enduring proprietor, and the UAE courts have a restrictive expert to choose such issues.

    The Muslim law of succession comprises of four sources of Islamic law:

    • The Holy Quran;
    • The Sunna - the act of the Prophet;
    • The Ijma - the agreement of the scholarly men of the network on what ought to be the choice on a specific point;
    • The Qiyas - an analogical conclusion of what is correct and just as per the high standards set somewhere near God.

    Muslim law recognises two types of beneficiaries or heirs, Sharers and Residuary. Sharers are the ones who are qualified for a specific offer in the deceased's property. As per the law, the Sharers can be any of the following:

  • Husband
  • Wife
  • Daughter
  • Daughter of a son
  • Father
  • Paternal Grandfather
  • Mother
  • Grandmother on the male line
  • Full sister
  • Consanguine sister
  • Uterine sister, and
  • Uterine brother
  • Generally, there are three types of nasabi residuary, namely, residuary by himself, residuary though another and residuary along with another.

    Governing law

    It is also important to note that the chief source of the law of inheritance in the UAE is Shariah, and based on the same Shariah Law, a few Federal Laws in the UAE have been enacted. The federal laws are –

    • Federal Law Number (5) of 1985 with regards to the Civil Transactions Code (the Civil Code)

    Article 17 of the Code states that

    i. "Heritage shall be governed by the law of the testator upon the death thereof.

    ii. The state shall be entitled to the financial rights present on its territory and belonging to the foreigner having no heirs.

    iii. The objective provisions of the will and all actions related to the after-death stage shall be governed by the law of the State of the person carrying out such action upon the death thereof.

    iv. The form of the will and all actions related to the after-death stage shall be governed by the law of the State of the person carrying out such action upon the issuance thereof, or the law of the State in which such activities took place.

    v. Provided that the law of the United Arab Emirates prevails regarding the will issued by a foreigner about the real estate thereof in the State"

    • Federal Law Number (28) of 2005 concerning the Personal Status Law (the Personal Status Law).

    Article 1(2) "The provisions of this Law shall apply to citizens of the United Arab Emirates State unless non-Muslims among them have special provisions applicable to their community or confession. They shall equally apply to non-citizens unless one of them asks for the application of his law."

     

    • Federal Law Number (25) of 2017 concerning on inheritance, wills, and probate for non-Muslims living and working in the Emirate of Dubai. The law affirms that foreign non-Muslims expatriates can now register wills in English by virtue of internationally recognized Common Law.

    Right to claim the deceased's estate

    As per inheritance Law in the UAE, beneficiaries and relatives reserve the privilege to claim the estate of the deceased, an estate is guaranteed for non-Muslims, if there exists a legitimate will. However, in case of death of a Muslim, the estate may be moved to the individuals who qualify as a beneficiary under standards of Shariah Law.

    In case of the death of a Muslim, the courts decide the beneficiary and reconfirm the same with two male witnesses along with the evidence, the evidence must be in the form of documentary proof, like marriage or birth certificates. Life partner, guardians, grandkids, kin, grandparents, uncles/aunties, nephews/nieces are considered as beneficiaries by the Shariah Law. The Shariah Law also imposes a few conditions on who can become an heir. As per the law, the following people cannot be an heir-:

  • An illegitimate child, as well as adopted children, are not considered as beneficiaries;
  • An individual murdering to benefit from the property will be ineligible to claim the estate;
  • Divorced women cannot claim from ex-husband's property unless they are undergoing the "iddat" period. Iddat is the period in Islam wherein a woman must observe after a divorce or after the death of her husband, during which period she may not marry another man. The purpose of the same is to ensure that the male parent of an offspring produced after the cessation of marriage (nikah) would be known.
  • Division of estate among the heirs of the deceased

    In the event of the death of a Muslim, the transferable rights will include every one of the rights relating to the property, usufruct and any other dependent rights. It is important to note that transferable rights will also cover the obligations of the deceased, which can be paid off from his estate. After fulfilling all the commitments and making payment of funeral obligations, whatever is residue shall be divided among the heirs. Below mentioned are the ways by which the assets will be distributed:

     I. One half of the assets will be given to:

    • The husband if no descendant;
    • The daughter;
    • The daughter of the son,
    • The sister, if she has no brother or sister, a successor of the deceased, father or grandfather;

    II. One-fourth of the property will be given to:

    • The husband, if wife has a descendant;
    • The wife, if the husband has no descendant.

    III. One eight of the property will be given to:

    • The wife, if the husband has a successor.

    IV. Two-third of the property will be given to:

    • daughters, if no son;
    • daughters of son, or his successors, of the deceased, has no son, grandson of the same degree;
    • germane sisters, if there is no germane brother, successor, father or grandfather;
    • consanguine sister, if there is no consanguine brother, a germane brother or sister, a successor, father or grandfather.

    V. One-third of the property will be given to:

    • The mother, if the deceased has no successor;
    • Mother's children, if there is no successor, the property shall be divided equally;
    • The paternal grandfather, if he concurs the estate of germane or consanguine brother and in the absence of forced heirs;

    VI. One-sixth of the property will be given to:

    • The father upon concurring with succeeding descendant;
    • The paternal grandfather, if the deceased has a successor,
    • Mother, along with the successor of deceased;
    • Grandmother, if she is not ineligible for an inheritance;

    Division of estate under the law, among the heirs of a deceased non-Muslim, who is a foreign national

    The Law in UAE permits the non-Muslim, foreign nationals to draft their will and to divide their property according to their will. However, in case a non-Muslim foreign national dies intestate, the Courts, as per the Civil and Personal Law of the UAE will distribute the assets of the deceased according to the principles of Shariah Law. It should be noted that as per Article 17(1) of the Civil Law, the inheritance of a person will be regulated by the law during the time of his death. Whereas, Article 17(5) states that the UAE law will apply to the wills of non-Muslim foreign nations, no matter where their property is located, in the UAE of outside of UAE. In addition to the aforementioned law, Article 1(2) of the Personal Law mentions that the said law will be applicable to non-Muslim unless he chooses to be administered under the law of his country. To explain further, this means that if a non-Muslim foreign national dies in the UAE and has assets in his home country, then, in that case, the laws of the home country can be applicable if his heirs request the Court. However, there is a restriction on dealing with the assets located in the UAE.

    As mentioned above, foreign nationals are given a choice to chose the law of the deceased during the time of his death. This can be done when the heirs first appear in the Court, they must request the court for application of home country law of the deceased. Heirs seeking to be governed by the law of the home country of the deceased shall submit the following as per Article 276 of the Personal Law

  • The duly legalised death certificate;
  • Last domicile of the deceased;
  • duly authorized will of the deceased.
  • Although the Personal Law allows the request for application of home country law, the Law does not expressly set aside the civil code, which leads to a level of uncertainty as to whether a non-Muslim will be considered under Shariah Law or under home country law.

     

    ]]>
    Mon, 16 Dec 2019 09:21:00 GMT
    <![CDATA[Pre-Nuptial Agreements in UAE]]> Pre-Nuptial Agreements in UAE

    Due to rising income and wealth, marriage and divorce have now started becoming a complex transaction. Pre-nuptial agreements have come to rescue for such complicated marital issues arising out of marriages either among Muslims or non-Muslims. Pre-nuptial agreement in general is a tool to legal and financial risk mitigation and regulate how division of the assets between future spouses should be divided in the event of divorce. Such pre-nuptial agreements include various issues, inter alia, spousal support, assets movable or immovable or the residence after the divorce or custody of children.

    There are certain situations in which the parties to dispute may consider having a prenuptial agreement drafted: -

    • The inheritance rights of children from previous marriage needs to be protected;
    • Both or either one of the party has inherited the assets and are expecting the same;
    • The parties want to protect their bank balance; and
    • The husband and wife want to decide how the asset would be divided in case of divorce.

    As reported in leading newspapers and articles, there has been a steady rise in divorce rate among parties in UAE, not only among expats but among GCC nationals and Emiratis. In fact, the Emirati nationals had divorce rate of 35% by 2015 as per one estimate which is observed to have increased by 2019.

    In UAE, there courts with legal system that deals with such matters but the matters have been divided between Muslims and Non-Muslims when the court seize of such matter. In fact, UAE courts believe in the legal principle that wherever a person travels he/she carries with him/her their personal set of laws. Hence, the UAE courts provide a choice to an expatriate to enforce divorce law of the country of citizenship of the parties. For Muslims, the UAE Courts follow the Shari'a principles of law and pre-nuptial agreements are permitted only as long as they do not conflict with these laws. The UAE Federal Law Number 28 of 2005 regarding Personal Status (the Personal Status Law) creates a distinction between non-Muslims, Muslim expatriates and UAE nationals along with the validity of pre-nuptial agreements.

    The non-Muslim pre-nuptial and post-nuptial agreements are generally permissible if the national laws of the contracting parties i.e. the country of nationality or of marriage provide for matrimonial division upon marriage dissolution or it allows enforceability of such agreements. Also, there is a distinction between assets movable or immovable that may be located in the UAE and abroad. With regards to the UAE assets, Article 1(2) of the Personal Status Law reads as:

    "The provisions of this law shall apply to the citizens of the United Arab Emirates unless the non-Muslims of them are subject to special provisions applicable, its provisions shall also apply to foreigners as long as none of them insists on applying his law."

    Further, Article 5 of Personal Status Law states that "The state courts shall be competent to try personal status actions initiated against citizens or foreigners having a domicile, residence or workplace in the state."

    Hence, a bare reading of Article 1(2) in conjunction with Article 5 provide that the pre-nuptial and post-nuptial agreements amongst foreigners which complies with the parameters in Article 5 shall be enforceable in accordance with the governing law agreed in the pre-nuptial agreement. Also, for the UAE assets and the assets outside the UAE, the contract enforceability shall be subject to the law of the place where those properties are situated.

    In case of the Muslim expatriates, it is crucial to make difference between expatriate Muslim who wish to enforce pre-nuptial agreement

    • Divorce law within UAE
    • Divorce finalized some other country outside UAE

    For divorce procedure set in motion within the UAE, the Personal Status Law shall be applicable and the status of the pre-nuptial agreement shall be at par with that which would be applicable and enforceable for UAE nationals. But in the event the pre-nuptial agreement is enforced after the conclusion of divorce which is being finalized outside UAE, the agreement would be regarded as enforcement of a contract subject to UAE Federal Law Number 5 of 1985 regarding Civil Transactions Law.

    When it comes to UAE nationals, Islamic Shari'a law does not recognize the validity of legal principle of matrimonial property and rather proclaims the autonomous financial status of the spouses. Therefore, every property gained or established by either of the spouses during the term of the marriage would and remains the sole property of that spouse with no rights of division or any right whatsoever.

    Shari'a law as matter of fact and custom allows the contracting parties of nikah to enter into any sort of agreement that governs their rights and obligations unless they stand contradictory to the Holy Quran and fundamental principles of Shari'a law. It is also notable to point that this allowance of such contract is laid down in Article 20 of the Personal Status Law that permits written conditions  to be elaborated and mentioned in the official marriage certificate without any limitation as to the scope of the conditions.

    The Personal Status Law also has an explanatory memorandum under its Article 20 that explicitly mentions that contracts which are meant to codify best interests of the parties are valid but then that marriage contract does not differ in its treatment similar to that of a civil-nature contract. Therefore, under the law for UAE nationals, in the marriage certificate certain conditions can be included and is permissible under the law. But there is a divergence of opinion amongst Shari'a scholars with regard to the scope of conditions that could be included in the marriage certificate. Some favour wider conditions and some limit it but in all they stress on omnipresent factor being it should not contradict Shari'a Law.

    An explanatory memorandum to the Personal Status Law mentions that the legislators have adopted the views of the Islamic scholars and hence encompass eclectic scope to strike the correct balance between public and private interests. Thus, such wide option would quarter the aspirations of changing society with Sharia' law and also protect parties from unnecessary harassment by other parties when divorce takes place thereby protecting the rights. Thus, pre-nuptial agreement provide transparency, flexibility, and saves time in divorce cases. It also helps to conclude divorces in an amicable manner rather than boisterous or in mud-slinging manner.

    The case in point is Court of Cassation, Dubai Case Number 2 of 2010, in which wife sought to file divorce on the ground of cruelty and mental and physical harm and pleaded dissolution of marriage as it was irretrievable breakdown. She sought to impose a post-nuptial agreement executed with her husband as per the terms of which her husband promised her a residential property in her name in UAE. The Court on 28 September 2010 granted her the divorce, but held that it was not legal to enforce post-nuptial agreement as the conditions were not written down into the marriage certificate; and therefore article 20 of the Personal Status Law would not be applicable. Hence, the Court adopted the stance of interpreting such pledge by the husband as any ordinary contract would be governed by the Civil Transactions Law. But ultimately even that post-nuptial pledged was not upheld by the Court as the clause of the agreement did not satisfy the requirements of the Civil Transactions Law, i.e. offer and acceptance of a contract, were missing in the agreement.

    Foregoing paragraphs have given us a brief idea of the status of pre-nuptial agreements in UAE among UAE nationals, Muslim expats and the non-Muslims. The main benefit of pre-nuptial agreement lies in the fact that the property enlisted in the official marriage contract, rather than annex agreement, is that the terms are understood to be agreed upon and accepted by the parties to the marriage. In the case of a post-nuptial agreement, one must take cognizance of the fact the terms have to be in line with the Civil Transactions Law in order to ensure all legal requirements are met.

    In view of the above, it can be easily inferred that a pre-nuptial contract entered into (prospective) between spouses as per which matrimonial assets or alimony is dealt with or where one spouse undertakes to transfer certain assets to the other upon divorce are usually held valid by the personal status courts and made binding on the party which had taken the obligations to itself.

    Besides, pre and post-nuptial agreements are significant when it deals with the properties which are located outside the UAE and in countries which enforce such agreement and with certain legal formalities fulfilled. Also, pre-nuptial agreements are risk mitigators in case any UAE national has wife who is a foreign national and would be in position to file a divorce proceeding for the assets located in UAE but the husband does not want foreign courts to decide on such UAE based property.

    As a final note it is stressed that while drafting pre-nuptial agreement, to safeguard rights over matrimonial assets, it is important that legal advice should be sought so that in case of UAE nationals the scope of such conditions does not conflict Shari'a principles and in case of expatriates Muslim or Non-Muslims, there is no biasness to one party.

    ]]>
    Sat, 16 Nov 2019 14:30:00 GMT
    <![CDATA[International Perspective on Juvenile Justice]]> 'Doli Incapax' – An International Perspective on Juvenile Justice

    'No civilised society regards children as accountable for their actions to the same extent as adults ... The wisdom of protecting young children against the full rigour of the law is beyond argument. The difficulty lies in determining when and under what circumstances should it be removed.' – Professor Colin Howard

    The Law relating to juvenile protection is a highly controversial topic and should be treated with utmost respect. Until recently, the law relating to the commission of crimes by the juveniles was under a dilemma, and now with the evolvement of jurisprudence, the legal system is more explicit concerning juvenile delinquency.

    Juvenile justice is a sensitive area of law dealing with the rights and protection of children. Therefore numerous amounts of legislation have been adopted at all levels, be it national or international. Juvenile justice is a realm which deals with various issues including the liberty and behavioral aspects of a juvenile.

    In this article, we will analyze the concept of juvenile justice and the position of juveniles from an international perspective.

    Meaning

    The term 'Juvenile' refers to any person, who has not attained the age of majority. In other words, a young person or a child who is not old enough to be regarded as an adult may be termed as a juvenile. Therefore under the law, the criteria for determining a juvenile may vary from jurisdiction to jurisdiction. For example, generally the age of 18 is considered as the age of majority, however, in countries like Japan and Taiwan, it is 20 years.

    The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, also known as the Beijing Rules, defines a juvenile as:

    "A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult."

    As discussed earlier, Juvenile Justice is within the domain of criminal law which deals with the offences committed by juveniles, and it also provides for their behavioral aspects, liberty, rehabilitation, and penal implications.

    Article 5 of the Beijing rules lay down the aims of juvenile justice as:

    "The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence."

    History

    Prior to the evolution of the juvenile justice system, the criminal courts tried and punished youths for the offences committed by them. Until the late 18 century, under the law, children were considered and treated with the same as that of adults. However, with the evolution of jurisprudence and the legal system, a thin line was drawn between the offences committed by adults and juveniles. Subsequently, the first juvenile court was established in the United States of America (Illinois) in 1899. The early juvenile institutions operated and were adopted under the doctrine of 'Parens patriae', which meant that a state could act as a parent of the nation.

    Juvenile Delinquency

    Juvenile Delinquency is the commission of an offence by a Juvenile. With the development of law concerning Juveniles, the method in which a juvenile is treated is different from that of an adult.

    James Burfeind and Dawn Bartusch in their Juvenile Justice: An Integrated approach defines juvenile delinquency as:

    "Actions that violate the law, committed by a person under the legal age of majority."

    The reason for the differential treatment that exists between juveniles and adults is because of the Minimum Age of Criminal Responsibility (MACR) and the doctrine of Doli Incapax.

    The Minimum Age of Criminal Responsibility (MACR) is the minimum age of a child that is deemed not to have committed a crime. Article 4 of the Beijing rules deals with the minimum age of criminal responsibility, and it reads as:

    "In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity."

    The age of criminal responsibility differs from country to country, and the Beijing rules provide for taking adequate measures to make it reasonable.

    The most critical element for constituting a crime is 'mens rea' or the criminal intention to commit an offence. A juvenile and an adult are subjected to different judicial procedures primarily due to this notion. The notion that a child is incapable of having the intention to commit a crime is called as 'doli incapax.' Under the English law, the doctrine of 'doli incapax' was the defense of infancy unless such a presumption was rebutted. Some of the states follow this doctrine, and therefore juveniles below a particular age are excluded from the liability for the commission of an offence. However, the age may vary from jurisdiction to jurisdiction. For example, the age of criminal responsibility is twelve in Canada and the Netherlands, whereas it is 7 in the UAE and India. This does not call for a necessity to maintain a specific age for criminal prosecution, and therefore in some countries, it is up to the prosecution to prove the existence of criminal intent.

    In T v. DPP [1997] Criminal LR 127, T an eleven-year-old child stole sandwiches from a shop. At the instance of getting caught, T tossed the sandwiches down and fled the scene. When interviewed, the child admitted the act of stealing because of having no money. In this case, the court opined that the combination of admission and running away from the scene was sufficient for rebuttal.

    International Position

    Though the concept of juvenile justice was not given much importance until the late 19 century, now it has become an area of law which contains the most number of legislation and International treaties. The international juvenile justice system focuses on the offences committed by the juveniles and has provided for the measures to protect the interests of the juveniles from the abuse of law. With the increase in concerns relating to child protection and their rights, many countries have adopted measures within their legal framework to safeguard the interest of the juveniles.

    In Roper v. Simmons 543 U.S. 551, Christopher Simmons, age 17, arranged to burglarize a lady's home and murder her. He, along with two of his friends, planned for the crime. However, before the evening of the murder, one of his companions quit the arrangement. Simmons and his friend broke into the victim's home, bound her hands and tossed her over the bridge. In this case, the jury found him guilty and recommended for the death penalty.

    However, in 2015, the Supreme Court of the United States ruled it unconstitutional for a person under the age of 18 years to be subject to capital punishment sentence, and thus overruled the 1989 Stanford v. Kentucky decision, which permitted capital punishment for offenders who were above the age of 16 years.

    The following are some of the International covenants dealing with the International juvenile system:

    International Covenant on Civil and Political Rights, 1966  states -"5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women."

    The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 also known as the Beijing rules, was adopted on 29 November 1985 for protecting the well being of children.

    The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 also known as the Havana rules, lays down the standard for the management of the juvenile justice system.

    The United Nations Convention on the Rights of the Child (CRC), 1989 provides for the protection of children by ensuring the rights available to them.

    The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 also known as the Riyadh guidelines, provides for the prevention of juvenile delinquency.

    The United Nations Guidelines for Action on Children in the Criminal Justice System, 1997 also known as the Vienna guidelines, were adopted for the protection of children and it was addressed not only to the states, but also NGO's and media.

    The International Juvenile Justice Observatory was formed in Brussels in 2002, to encourage global juvenile justice and to tackle the issues relating to juvenile delinquency and justice issues.

    Therefore the above mentioned International instruments have taken adequate measures for the protection, and well-being of juveniles, and make it an obligation on the states to enact legislation conforming to such recommendations and policies.

    The position of Juvenile Justice in the UAE

    The UAE has taken adequate measures for the protection of Juveniles, and further has enacted and implemented provisions associated with juvenile delinquency. The United Nations Convention on the Rights of the Child was adopted and ratified by the UAE on 3 January 1987, and it was one of the first countries to do so within the Middle East.

    Article (1) of the UAE Federal Law Number 9 of 1976 concerning juvenile delinquents and runaways defines a juvenile as:

    "Juvenile is a person who is not older than eighteen years of age at the time of committing the act subject for questioning or being in a state of homeless."

    Article (7) states:

    "If a juvenile who completed seven years but is below sixteen years of age committed a crime punishable by the penal code or any other law the judge shall give its ruling as it may find fit."

    The Article (10) of Federal Law Number 9 of 1976 provides for the replacement of capital punishment or life imprisonment in the case of a juvenile to detention punishment for up to 10 years. It provides for reducing the term so that it does not exceed one half of the maximum limit originally determined. Further, Article (10) also provides the juvenile delinquent with social care and educational facilities.

    According to the Article (12), where a juvenile has committed more than one offence, he shall be punishable for both the crimes as one, provided that he receives punishment for the worst crime.

    Article (23) provides for placing juveniles in suitable institutions or correction and educational homes for rehabilitation.

    Therefore, the Federal Law Number 9 of 1976 provides for the law relating to juvenile delinquency and protection of juvenile offenders.       

    The UAE Federal Law Number 43 of 1992 deals with the organization of punitive institutions and it contains provisions relating to juvenile rehabilitation. Chapter 7 of the Federal Law Number 43 of 1992 provides for rehabilitating the Juveniles.

    Article (49) reads as:

    "A committee for rehabilitating the juveniles shall be formed upon a resolution from the minister of interior, in agreement with the minister of justice and Labour and social affairs, headed by one of the presidents of the federal public prosecution, including the following in its membership:

  • The establishment officer.
  • One of the specialists in psychology.
  • A representative of the ministry of education.
  • A representative of the social affairs.
  • The committee shall be entitled to ask the aid of whom it deemed necessary from the concerned."    

    The Article (51) of the Federal Law Number 43 of 1992 contains provisions for allowing the juvenile to leave the establishment to visit relatives in the official feasts, during exceptional conditions or in any other occasion. It also provides for exceptional vocation, provided that such a resolution is from the minister of interior based on the committee's recommendation.

    Therefore, from above it is obvious that the concerned laws offer considerable protection to the juveniles within the region and adequate steps have been taken by the government for protection of juvenile justice.

    Conclusion

    The fine line between the commission of offences between an adult and a juvenile is now well accepted and recognized. Almost all the countries have provided for separate laws relating to the acts committed by juveniles, and it is necessary for the better administration of the State. Therefore, juvenile justice covers all the spheres of a juvenile's life and is not restricted to a particular set of regulations.  

    ]]>
    Mon, 18 Mar 2019 17:56:00 GMT
    <![CDATA[WOMEN AND DIVORCE - Think Financially! ]]> SPOUSAL SUPPORT IN BROKEN MARRIAGES

    A professional women's working hours might be from 9 to 6, but a housewife's job doesn't end there. A housewife has a 24-hour tireless position much more than anyone who works outside the house. On any given day they are required to be nurses, psychologists, drivers, chefs, party planners, finance managers, handyman and many other professions all in one. Being a housewife is a multi-profession role with having problem-solving, multi-tasking and creative attributes to keep the things running in the house and keeping their audience content and happy which is a difficult task as any housewife would testify.The role of women in the family and the office has been of great debate throughout recent history. The criticism on homemakers questioning them being at home and relaxing has been a mere perception and an area of the critical discussion with the changing social construction and rising feminism ideologies.

    In a recent judgment in India, Karnataka High Courtrecognizes "housewife as busy as a professional." A couple got married in Meerut in Uttar Pradesh, and due to their domestic disputes, the husband filed for divorce at a family court in Bengaluru, while the wife was residing in Muzaffargarh, Uttar Pradesh. The wife filed for a transfer application before the Supreme Court; it declined on the basis that the wife is eligible to claim for 'requisite expenditure'when the need for traveling arises to attend the hearings. The family court ordered the husband to pay towards the wife's traveling needs, who had traveled to attend hearings. The husband argued that because the wife is a homemaker, she is not eligible for 'requisite expenditure' and also contended that because she does not work, she has the available time to travel by train rather than taking a flight. The High Court acknowledged that homemakers are as busy as working professionals as she is the one responsible for running the house and looking after family members and this perception in the society raises flags for gender injustice. Justice Raghvendra S Chauhanobserved that the contention that the wife should travel by train is because she is 'free' and a housewife shows lack of understanding of the hard work and dedication carried out by the homemaker. He stressed that a housewife is as busy as a professional person with all the house and family responsibilities.

    The alimony or the divorce spouse maintenance is a requirement by law in almost all the countries around the world. Alimony is a monetary compensation granted for the spouse support during and after the divorce proceedings. It expects that both the spouses regardless of their gender must bear the maintenance through and after the marriage. The awareness of support came in fashion because of the increasing issues in the union. Once the knot is tied, the commitments and obligations of marriage are to be carried out for the rest of the life even if there is mental disparity or physical separation between the husband and the wife. As time changed, the laws and education empowered woman and divorce came as one natural solution for an unsuccessful marriage.

    Divorce and UAE

    The United Arab Emirates is a Muslim country but being one of the most diverse lands there is a significant population of expats residing practicing their cultures, traditions, and religions. The study according to the Dubai Statistics Centre in 2016 revealed that there are six cases of divorce for every one thousand couples in Dubai, a number that is measured higher than the global divorce rate. Separation is a reliably rising marvel in the UAE, and expat couples are in perplexity over how to deal with the assets and benefits that they mutually attempted to obtain during their marriage. The Sharia law governs Islamic marriages. Shariah and the UAE law shall apply to couples who are both Muslims and likely if the husband is Muslim and the wife is not.  However, Non-Muslims expats residing in the UAE can file for divorce in their home country or register for divorce in the state of residence, UAE.  If the couple wishes to have their home country's law applied in the UAE courts, they have the option to appeal for it. Article 1 of the Federal Law Number 28 of Personal Affairsestablished that the "provisions of this Law should apply on citizens of the United Arab Emirates State unless non-Muslims among them have special provisions applicable to their community or confession. They shall equally apply to non-citizens unless one of them asks for the application of his law". The law describes that the relevant parties may ask to apply their rules to personal status matters. It also provides that the law of the state of which the husband is a national at the time of when the marriage contract shall apply to the effects on personal status and the effects with regards to property and assets resulting from contracting of the union. If the law fails to cover an aspect of the divorce procedures from the parties' home country laws, then the courts hold the decision to apply the UAE law. The UAE law gives the wife the entitlement for alimony and maintenance for the wife and the children by the Personal Status Lawof the UAE. Article 63 of the Federal Law Number 28 of 2005concerning the personal status states:

    1.    Alimony includes food, accommodation, medical care, clothing, servicing charges if she has served in her family's house and all that claims in a marital relationship.

    2.    Alimony is a grant according to the financial ability of the maintainer and the conditions of the dependent and the economic situations regarding place and time. However, support shall not be less than the satisfactory limit.

    3.    The eyewitness shall be sufficient for deciding the kinds of support, the amount of custody, the house and the conditions on which any determined thing depends.

    Further, a wife is entitled to alimony once her husband stops providing her basic needs by Article 67of the Personal Status Law, "The wife's maintenance shall begin from the date the husband refrains from supporting her. It shall be considered a debt due, without the government or an agreement's dependence, but payment or absolution shall extinguish it. Also, A claim for alimony which exceeds three years from the date of introducing the action in court, shall not be heard unless agreement imposes it.

    Sharia Law's take on Divorce

    The Islamic Shariah law governs divorce cases with Muslim couples' in the UAE. Shariah principles make it more complicated for the estranged couple to divorce, except the judge is fully satisfied that the marriage will not work further. The first step in the divorce process is to register a case at the Moral and Family Guidance Section at Dubai Courts. A counselor will then interact with the couple and discuss their issues. If the couple, or either of them, still claims for divorce, then the application will be forwarded to the court. Shariah Law lies on the Islamic principles governed by the holy book Quran; it provides support for the wife after the separation. The maintenance is defined and limited to the period of iddah, that is three months after filing for divorce or duration of a pending pregnancy. During the iddah, a husband must support his wife according to his income, which includes residency in the family residence. However, in a case in Bangladesh, in Muhammad Hefzur Rahman v. Shamsun Nahar Begumxiv, the Supreme Court, relying on the Quran, ruled that a Muslim husband's responsibility to maintain his divorced wife does not end with the expiration of the iddah. The court stated that the husband is bound to provide his divorced wife with maintenance on a reasonable scale for an unspecified period until she gets married again.  In Egypt, the Decree-Law Number 25 of 1929provides for two types of alimony: Iddah and enjoyment alimony. The law limits iddah alimony to one year, even if the court orders a longer time. However, if the marriage has concluded and the wife divorces without her consent or fault, she is entitled to two years of enjoyment alimony, at the rate of iddah alimony. In ordering the additional support, the court must consider husband's financial situation, the reason for divorce, and the length of the marriage.

    India and Alimony

    The presence of many religious beliefs in India, the Indian Judiciary has executed laws independently for couples associated with different religious convictions. The following are the laws related to different religious communities. Numerous acts have been passed by the government to make the present-day divorce practices in India more progressive to match the ever-changing societal norms and customs. The Muslim Women Act 1986was enacted to protect the rights of Muslim women on divorce. For inter caste and inter- religion marriages the divorce laws approved under The Special Marriage Act, 1956. All Hindus, as well as Buddhists, Sikhs, and Jains can pursue divorce under the Hindu Marriage Act 1955. The Muslim, Christian, and Parsi communities have their laws governing marriage and divorce in respect to their customs and religions. Spouses belonging to different castes and religions can seek divorce under the Special Marriage Act, 1956. Alternatively, if either partner belongs to another nationality, they can file under Foreign Marriage Act 1969.

    Maintenance Order in the United Kingdom

    In the UK, a couple is to be married for at least a year to file a divorce petition. The legal ground for divorce is that the couple should be forever separated. The party who files for divorce should prove that the marriage is broken irretrievably by establishing one of the following facts:

    1)    Adultery

    2)    Unreasonable behavior

    3)    Desertion

    4)    2 years separation with consent

    5)    5 years separation (no approval required)

    In the UK, the court can sometimes order the person with higher income to make maintenance payments to support the living cost of their ex-partner which is called a 'maintenance order.' The maintenance payment can be set for a limited period or until one of the partners dies or enters into a new civil partnership. The payment can alter if one of the partners loses the job or gets better paid. A recent case which showed new dimensions in family law in the UK is the case of Mills v Mills [2017] where the couple divorced in 2002 and agreed to the maintenance order and the court order to provide financial support and provide periodical payments to the wife of £1,199 per month. In 2014, Mr. Mills applied to revoke his maintenance payments or to reduce the payment amount. Mrs. Mills made a counter application to increase her payments as she was unable to meet her necessities. Court decided that the original order should continue and the couple appealed. The Court of Appeal agreed wife's appeal on the ground that the provision has already decided for the respondent's accommodation costs in the capital settlement. This judgment for increasing the wife's maintenance payment stunned the family lawyers as recently the trend seemed that the parties in divorce should become financially independent as maintenance orders have become quite uncommon.

    In a nutshell

    While divorce may end a marriage, it doesn't end commitments of one partner of another. In numerous relationships, one companion is more fiscally well off than the other. In a divorce, this procuring inconsistency implies that the less fortunate accomplice is qualified to get spousal support, or alimony, to support the other post the separation.  Different countries have different laws and rules towards awarding spousal support based on factors such as duration of the marriage, financial stability, income and health of the recipient.

     

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    Thu, 14 Jun 2018 10:25:00 GMT
    <![CDATA[Legalities Surrounding Division of Assets Post Divorce]]> US Law: Legalities Surrounding Division of Assets Post Divorce

    What's mine is yours! During subsistence of the marriage, this phrase is often (willingly) quoted by either spouse to the other. However, the dynamics change once the marriage ends and the married couple goes through a divorce. The aspects and details of the division of assets, custody of children, payment of alimony have to be assessed and dealt. While in certain situations, these issues are amicably sorted and settled, in some, these uncertainties become the cause of grave mental and financial distress for the parties involved.

    This Article covers the scope and legalities involved in the division of assets and ancillary issues under a divorce in community property states in the United States of America.

    To briefly elucidate, the United States gets divided into common law and community property states. Majority of the states in the US are common law property states where the property acquired by one spouse during the marriage is solely owned by that person unless the title deed of the property states the name of both the spouses. In that case, it shall belong to both the spouses. However, common law property states deal with acquisition and division of the properties for married couples in a much different manner. In community property states, properties- both real and personal bought during the marriage are considered community property or marital property and is owned in equal ownership. Importantly, community property is not only limited to ownership of assets but also any debts accrued by a married couple during the marriage. The states of California, Arizona, Texas, Idaho, Nevada, New Mexico, Louisiana, Washington, and Wisconsin are community property states.

    For this article, we shall discuss the state laws of California to understand the classification under marital and separate property and legalities involved post-separation and divorce in such community property states in the US.

    Section 760 of the Californian Family Code[i](the Family Code) sets out that all property whether real or personal, wherever situated, acquired by a married man during the marriage while having his domicile in the state of California falls within the purview of community property. Importantly, any property which is not categorized as separate property is community property.

    The Family Code provides that a separate property of a married person includes among other things all property owned by the person before his marriage, all property acquired by the person after his marriage by way of gift, bequest, devise, or descent. The Family Code further provides that even if the community property gets transferred in trust, it remains community property during the marriage and any community property that is withdrawn from a trust by revocation or otherwise remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal.

    Importantly, the Californian laws provide for transmutations or amendments or alterations to a marital property into separate property.

    Under the Family Code transmutations of the property refers to a written agreement between married persons to transfer, with or without consideration, community property to separate property of either spouse. Importantly, the Family Code provides that for the division of property on dissolution of marriage or legal separation between the parties, property acquired by the parties during the marriage as community property or any reason whatsoever is presumed to be community property. This presumption may be rebutted only if:

  • A clear statement in the title deed or other documentary evidence of title through which the property gets acquired that the same is different and does not form part of any community property.
  • Proof that the married persons have made a written agreement that the property is separate property.[ii]
  • Pertinently, should a married couple decide to separate or divorce, either spouse may file a proceeding before the court for dissolution of marriage or separation. In such matter, the courts may either pass a judgment of divorce or decide on separation of parties. Alternatively, at a later time, the court may expressly reserve jurisdiction to make property division. In doing so, it may result in dividing the community estate (marital property) of the parties equally unless otherwise agreed in writing or orally by parties in the court.[iii]

    Let us now consider a case study to understand the dynamics of the community property state laws better. Consider the situation of Mr. X bought a property in California, US during his marriage to his wife in the year 2010. In the same year, Mr. X settled a trust with the said property and the wife as a beneficiary to it. After that, Mr. X revoked the trust, and the ownership was transferred back to his sole name in the year 2015.  After a few months, the client and the wife get divorced outside the US with the divorce decree not specifying anything about the Californian pr operty. Now, Mr. X desires to sell off the property which gives rise to some queries dealing with the aspect of this sale. Through the below FAQs, we discuss and provide clarifications to the dynamics of the proposed transaction.

  • Mr. X had amended the title of the property from the trust to his sole title, will such change not affect the right of the ex-wife on the marital/community property.

    For the ex-wife's claim on the property, it is essential to ascertain whether the Property falls under the purview of community property or separate property. A bare reading of the Californian Family Code categorically sets out conditions under which property gets defined as a separate property.  Transferring the title in the name of Mr. X, will not render the property as a separate property.

    Accordingly, in light of Californian Family Code, a property that is withdrawn from trust and transferred in the individual name of any person, will be constituted as community property unless the property gets legally transferred in writing as separate property by that individual.  However, without a written agreement to that effect, the Property shall be termed as community property.

  • Are there any options by which Mr. X can sell the property himself without any claims on the property by his ex-wife?

    To effect a smooth sale of the Property without any hindrances, Mr. X can approach his wife to obtain a Quit Claim Deed (the QCD) or an inter-spousal agreement.

    A quitclaim deed is a deed under which one spouse waives off his/her rights in the Property in favor of the other spouse and transfers the sole interest in the name of that spouse.

    Similarly, an inter-spousal agreement may be used between married parties to transfer a marital property to separate property of one spouse or alternately add the other spouse to the title of the property or assign a title to a property on according to a divorce settlement thereby recording the arrangement between the married couples.

  • What steps can be taken to obtain title insurance in theUS in sole favor of Mr. X?

    US insurance companies, in line with their internal compliances, before certifying the title in favor of Mr. X, needs to be confident that the ex-wife will not make any claim on the Property. Therefore, the insurance companies seek a written agreement or QCD for this purpose. Also, another mode of executing a sale is to obtain a deed of warranty by the owner of the property in favor of the purchaser. Typically, under such deed, the seller promises that the seller has not transferred the property to anyone else, and the same is free from encumbrances or any third-party claims. A deed warranty provides a high degree of protection (insurance and indemnity) to the purchaser of a property and therefore may be accepted by the insurance companies and purchaser to affect the sale. However, it is important to highlight that on the execution of the deed of warranty, Mr. X is open to risk on account of any proceedings that may be filed by the ex-wife towards her rights and interest in the Property, claiming to be her marital property. At that stage, depending on the outcome of the litigation, Mr. X may be liable to, and reimburse the purchaser against any losses incurred by the purchaser on account of the claim filed by the ex-wife.

  • In the event, Mr. X can sell the property, can he transfer sale proceeds to another country without any hindrances?

    The proceeds from the sale of the concerned property are taxable for long-term capital gains in the US in the event the person holds the same for over a year. The percentage of taxable income as per long-term tax depends on the tax bracket under which an assessed would fall.

    Additionally, Mr. X would have to comply with the reporting and tax regulations in the US to remit the proceed of the sale of the Property, and the degree of compliance shall be subject to the 'status' of Mr. X (whether Mr. X would qualify as a US person).

  • Enforcement of Foreign Orders on the division of assets

    Enforcement of Foreign orders on divorce and following rights between the parties are subject to the doctrine of comity. Further, to ascertain whether a foreign court has jurisdiction over subject matter, a divorce order is not treated as one court order. The divorce order is unique as it contains separate court orders for support, custody, children, and property, each having different jurisdictional requirements. This division of the divorce judgment into separate orders with different jurisdiction related conditions is called the doctrine of divisible divorce. For enforcement of a foreign judgment for the division of immovable property in California, either party may bring a suit for partition in the Civil Department of the Superior Court California. Accordingly, for courts to consider an order or enforce a judgment for divorce, it must have the required jurisdiction over the part of the decree that must be imposed.[iv]

    Conclusion

    The process towards separation or divorce if often very taxing for a married couple and it is prudent for the parties to amicably determine their rights and obligations towards the division of assets and liabilities, child custody and support and other ancillary aspects accompanying the separation or divorce for a smooth divorce and settlement. The parties may opt to either arrive at a solution through an inter-settlement/inter-spousal agreement or may seek a court order towards settling. In any event, in case of any confusion or doubts regarding the entitlements and obligations, the parties may seek the assistance of financial mediator and lawyers to safeguard their interest and offer some peace of mind.

    Till Death do us apart? Really?


    [i]Enacted in the year 1992. Operative January 1, 1994

    [ii]Section 2581 of the Family Code

    [iii]Section 2550 of the Family Code

    [iv]Peter M. Walzer, Esq.- Divorce.com

     

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    Thu, 10 May 2018 15:23:21 GMT
    <![CDATA[The Law on Insider Trading]]> INSIDER TRADING BETWEEN FRIENDS AND FAMILY

    "The stock market is a device for transferring money from the impatient to the patient."

                                                                                                                                      - Warren Buffet

    The term insider trading has been popular amongst headlines of newspapers for a while now and has been subject to the argument of whether it's pertinence to family and friend is legal or not. Assume you are the chief executive officer of an organization that is about to report a major merger which will push up your stock costs. Through your enthusiasm, you inform a close companion of your actions, leading him to conclude that it is in his best interest to purchase shares in your organization. Through this tipping, have you broken your obligation to your organization and its shareholders by providing your friend or family the information for their profit? Would this amount to insider trading? Let's read further to find out.

    In the case of Salman v. the United States[i], the United States Supreme Court observed and ruled on whether a tip on confidential information by an insider to a friend or relative amount to insider-trading. This article sets to provide a brief analysis of the case and discuss the status quo of insider trading between friends and family in other major jurisdictions.

    Background

    In 2002, Maher Kara started working for Citigroup in its social insurance venture for managing an account group. Throughout the following couple of years, Maher looked for assistance from his sibling Michael Kara to better comprehend the science behind his work. By 2004, Maher was sharing secret data about Citigroup's practices. From 2004 to 2007, Maher intentionally uncovered data about upcoming mergers and acquisitions by Citigroup customers. Maher had confessed to providing Michael, his brother, with information and data to profit him-of which Michael denied. Maher and Michael were to a great degree. Maher affirmed that he gave Michael the data to benefit Michael. Meanwhile, Michael got engaged to Bassam Yacoub Salman's sister and started to share some of the insider information, he got from his sibling, with Salman. However, Salman did not particularly exchange through his account but rather used his brother-in-law, Karim Bayyouk's account to trade approximately USD 2.1 million. There were various events where Bayyouk and Michael Kara executed similar trades issued by Citigroup's customers. When things went bad, Salman was accused and convicted of insider trading in 2011. He filed for another trial; although, the court denied his appeal. Therefore, he filed the case with the U.S. Court of Appeals for the Ninth Circuit and contended that there was no proof indicating his knowledge that the data utilized for exchanges was obtained from insider trading. In the meanwhile, the precedent set by the Court in Dirks v. SEC{C}{C}{C}[ii] elucidated that the liability of the tippee is based on whether the tipper breached a fiduciary duty by disclosing the information. The tipper discloses a fiduciary information when the disclosure of information is for a personal benefit.

    Therefore, the court looked for an explanation on two issues to determine the petitioner's liability: (1) Under Dirks case, does the individual advantage to the insider be monetary or is a familial relationship enough; and (2) Can inability to research where the tip originated from constituting resolute visual impairment? After studying the issues, the appellate court found that there was adequate proof that Salman knew he was trading on insider data, given the close family relationship.

    The Ruling of the Apex Court

    Subsequently, On January 19, 2016, a case was brought before the Supreme Court by writ of certiorari{C}{C}{C}[iii] regarding the main issue. The main issue was whether the evidence of a family relationship adequate to maintain a conviction for insider trading or should there be proof that the people involved were aware of the potential monetary profit accumulated through the trading of data? The jury led by Justice Samuel A. Alito, Jr. could deduce that the tipper benefitted by providing confidential data to a relative who was interested in trading. The apex court took purview of the judgment of the appellate court and held that the family relationship was adequate proof that Salman realized that he was leaking insider confidential information. An individual is said to commit insider trading when the informant has a tip that benefits him. Here, Maher tipped off his sibling Michael, which stated that Maher profited by the divulgence and had in this manner abused his obligation to Citigroup. Further, Salman was guilty of insider trading because he realized that the data was obtained from insider trading and Maher remained to profit by its revelation. Consequently, the Court found that Salman's learning of Maher's potential for personal advantage from the tip upheld his conviction for insider trading.

    US Insider Trading Laws

    The following statues and regulations have elucidated insider trading in the US:

    • Securities Exchange Act of 1934;
    • Insider Trading Sanctions Act of 1984;
    • Insider Trading and Securities Fraud Enforcement Act of 1988; and
    • Stop Trading on Congressional Knowledge (STOCK) Act of 2012.

    Regulations promulgated under the Securities Exchange Act of 1934 are as follows:-

    10b5-1 - Trading "from Material Nonpublic Information in Insider Trading Cases,

    10b5-2 - Duties of Trust (or Confidence) against Misappropriation in Insider Trading Cases;

    14e-3 defines Transactions in Securities based on Material, Nonpublic Information in the Context of Tender Offers.

    Criminal Penalties: Section 32(a) of the Securities Exchange Act of 1934, as amended by the Sarbanes-Oxley Act of 2002, penalizes individual(s) with up to twenty (20) years imprisonment for securities fraud and/or a fine up to USD 5 million for each willful violation of the Securities Exchange Act and the regulations under it. However, the defendant will not be criminally liable if he or she can prove that he had no knowledge of the violation of the particular rule or regulation. In such cases, the violator may only have to pay the fine prescribed. Further, corporate entities may attract a fine not more than USD 25 million in a case of insider trading.

    Civil Penalties: Parties guilty of insider trading are mandated to pay the Federal Government an amount equal (summing up) to the profit made or loss avoided. Further, Section 21A of the Securities Exchange Act of 1934 states that a convict of insider trading may also be fined with a penalty of up to three times that amount may also be barred from taking up the office of a director of a public company.

    "Insider trading tells everybody at precisely the wrong time that everything is rigged, and only people who have a billion dollars and have access to and are best friends with people who are on boards of directors of major companies they're the only ones who can make a true buck"

    -        {C}{C}{C}Preet Bharara

    A Global Analysis

    The United Arab Emirates

    Article 37 and Article 39 of the Federal Law Number 4 of 2000 (the Law), established UAE Securities and Commodities Authorities (the Authority) governed by a Board of Directors prohibiting the existence of insider trading in the UAE. Article 37 of the Law has prohibited the utilization of undisclosed information that may affect the prices of securities for personal benefits.

    Further, Article 39 states that no person may deal in securities based on unannounced or undisclosed information that he or she may have obtained their position. It is also not permissible to spread rumors about the sale or purchase of shares. The chairman, management, or staff members of any company shall not use their inside information about their company to buy or sell shares in the market. The Law has also prohibited employees from trading in their company's stock, and exceptions to this rule have been laid down under Article 38 of the Law. The chairman, board members, general manager or any staff of a company listed on the stock market can do any transaction in securities of the same company in person or through others by disclosing relevant information required by the market and getting an approval of the company's board of directors for the transaction.

    India

    Insider Trading in India is an offense under section 195 of the Companies Act, 2013, and sections 12(A) and 15(G) of the Securities and Exchange Board of India Act, 1992. Insider trading happens when we enable access to the undisclosed, price sensitive information about the securities of the company subscribes, buys, sells, deals, or agrees to do so or counsels another to do as principal or agent. Punishment for insider trading is imprisonment up to five years and fine ranging from Indian rupees five lakh (INR 5,00,000) to Indian rupees twenty-five crore (INR 25,00,00,000) or three times the benefit made; whichever is higher.

    [i] 580 U.S. __ (2016)

    [ii] 463 U.S. 646

    [iii] A writ that authorizes a higher court to review a case tried in a lower court.

     

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    Sun, 12 Nov 2017 12:00:00 GMT
    <![CDATA[Palpable Payments]]> Palpable Payments

    'Oh, no. It costs a lot more than your (own) life. To murder innocent people?'

    -Suzanne Collins

    This article was authored by Reem Ali, Abdel Ghany and George SK

    Although globalization is advancing at the seams of the 21st century, it remains unclear as to when will the legal systems across the world harmonize. The differing principles, customs, and their applications are ones that scholars attempt to understand by interlacing them. But not all policies and sources can be interpreted similarly. Some systems, such as Shariah law, have legal mechanisms that diminish both consequences and responsibility if seen through a secular lens. So, would it be daring to say that man has evaded a death penalty and received a profoundly minimized consequence of a crime such as murder, after raping and killing his daughter by paying her mother SR 300,000 (USD 79,990)?

    It may quite be surprising to some that the Islamic legal framework allows diya which some refer to as blood money. The payment of diya allows an offender to compensate a victim's heirs or family for the violent and heinous crime they had committed. It also provides the offender relief from retaliation. Some legal scholars have compared diya to 'clemency' a form of pardoning that secular legal systems implement and the international law recognizes. However, for the sake of technicality and clarity, we must distinguish between what is recognized by international law as a pardoning mechanism and the reality of what Shariah law permits.

    Blood Flow - Cash Flow

    There are three differing categories of crimes that can be committed under Islamic Jurisprudence. The one to be discussed in our article is qisas. It broadly covers criminal acts such as intentional killings-murders, accidental or unintentional killings, and non-fatal bodily injuries. Shariah law punishes those who commit qisas through the death penalty or the payment of diya. In the United Arab Emirates, Federal Law No.3 of 1987 On the Promulgation of the Penal Code separates 'intentional killing' and 'unintentional killing.[i] Article 28 classifies 'intentional killing' as felonies punished by qisas of which the punishments include the death penalty, life imprisonment, or temporary imprisonment.[ii] In such a case diya can only be awarded if the family or heirs agree to grant it. However, Article 29 describes 'unintentional killing' as misdemeanors where diya is a punishment that can be awarded by the Court as per Article 29(3) (while the death penalty is a viable punishment).[iii] Other misdemeanor sentences include a fine exceeding 1,000 UAE Dirhams or temporary imprisonment. Here the law specifically mandates the application of the Shariah law.

    In an application of law discussed above, the Dubai Court of Appeal has sentenced the doctor, cook, and restaurant supervisor that caused the unintentional death of Nathan and Chelsea D'Souza by food poisoning to jointly pay UAE Dirhams 4000,000 as a diya payment. Also, each offender was fined to pay UAE Dirhams 20,000. As stated above, this offense was considered to be a misdemeanor of which the qisas punishment of a death penalty is not an option as per Article 29 of Federal Law Number 3 of 1987.

    As the decision calling for a contribution of diya payment is in the hands of the victim's family and heirs, one could perceive it as a non-judicial grant. However, as will be discussed later, this raises to question whether the practice of giving diya payments contravenes international human rights law.

    The thirteen jurisdictions that currently practice diya are Saudi Arabia, Bahrain, UAE, Kuwait, Libya, Jordan, Yemen, Iran, Sudan, Nigeria, Somalia, Afghanistan, Jordan, and Pakistan. With such practice comes the requirement of understanding not only the traditional fabric within which the Shariah law operates; but also the traditions of each country and their colonial influences. Following such, although the victim's families or heirs have the right to choose whether diya payment will be granted some governments also encourage it. The offender may also still face a prison sentence even in matters where the offender has settled diya payments.

    Pakistani application of the Shariah principle can be seen in PLD 2015 Supreme Court 77 (Criminal Appeal Number 126 of 2012) Zahid Rehman Vs State (Criminal Petition Number 568 of 2011):[iv]

    Referring to Section 302 (1), Section 304, and Section 306, to 308 of Pakistan Penal Code, the Courts held that "this intentional murder was not liable to qisas. Section 299 (K) of Pakistan Penal Code defines "qisas" as 'punishment by causing similar hurt in:-

    • the same part of the (victim's) body of the convict as he had caused to the victim or;
    •  by causing his death if he had committed intentional murder, in the exercise of the right of the victim or a wali (family or heir of the victim).

    The word qisas meant "return of evil for, evil" and it also meant "retaliation." The court further held that punishment of "qisas" left no room for 'tazir' punishment (a lesser category of a crime worthy of punishment under Shariah law) to be included and concluded that if the offender is not liable to tazir, then he would only be liable to diya. The courts also relied on Muhammad Akram vs the State (2003 SCMR 855)[v] and held that (if tazir were to be considered in deciding on qisas) such interpretation would result in granting a license to parents or guardians to kill innocent persons within their families.

    Each diya implementing state decides the amount of diya payment differently. In Saudi Arabia and Pakistan, the diya amount is determined by the Shariah Judge. While in the United Arab Emirates the government negotiates with the family or heirs on behalf of the offender. In Iran, the amount of diya gets negotiated between the family or heirs and the offender. What may surprise more, is that it is permissible for the families or heirs to decline the payment of diya in its entirety and instead grant a pardon (known as afw) as an act of compassionate religious charity allowing the offender to evade any and all punishment or only a lesser sentence. The scope of afw is, however, one separate from diya.So, if we take what has been outlined above as a basic understanding of diya, it is evident that diya does not fit neatly into the boxes of clemency as understood by secular law systems. The United States of America defines clemency as the conversion of a death sentence into a lesser order of imprisonment. However international law would find clemency synonymous to commutation. Commutation is the substitution of a court-imposed punishment to a minor correction. This rule could apply to any prison sentence and would not be limited to qisas. Further, unlike diya, clemency would be a power possessed by an executive and as such gets witnessed as a power related to the principle of sovereignty. Such an executive may be the head of state, a government minister, or a pardons board.

    Over-Empowered

    The main difference mentioned above is the crux of the inadequacy of comparison. The power held by a private citizen to decide whether an offender should receive a form of pardon such as diya is one that opposes fundamental principles of secular legal systems. As such, diya cannot get classified as a pure form of clemency. Not only does the power to grant clemency come from the executive but some Shariah implementing countries also retain the option to grant clemency and pardon in murder compensation regardless of whether diya gets refused or granted. The application of diya is also more prevalent than the claim for clemency. This aspect then boils down to where the power to award lies. As private citizens can decide to grant diya more readily than the political and legal process, an executive must adhere to reach a decision of granting clemency.

    However, it is understandable to note the similarities that allow legal scholars to combine the two principles under one umbrella. In both cases, the power lies outside the scope of the judiciary. Regardless of such, both are within the legal framework of their respective systems and are authorized by the legislative. Further, the decision regarding the guilt of an offender remains within the ambit of the court's judiciary, and both diya and clemency relate to the reduction of punishment only after this decision gets established. Finally, as the granting of both is outside the scope of the judiciary, allowing a grant raise a question as to whether in doing so the authority of the courts gets subverted when involving and imposing non-judicial decision as punishment or retribution.

    What we would like to put forward is the necessity of a new theoretical paradigm that allows legal scholars to develop their understanding of diya outside the walls of clemency. As shown above and as will be discussed below, diya is subject to its principles and legal framework that is not compliant with a secular legal system. As it resolves disputes between individuals under the territory of criminal law, it can classify as a union of criminal and civil law. This union may be the beginning of the introduction of a new theoretical paradigm.

    Also, when in association and through the interpretation of clemency, diya is given a defense regardless of the possibility of it contravening international human rights law. Article 6(4) of the International Covenant on Civil or Political Rights gives prisoners the right to seek commutation or pardon. This rule gets unjustly inhibited by the practice of diya. Those with limited financial resources, of a young age, bereft, and ordinary prisoners, foreigners, or without ties to the locals have their right to pardon diminished or stripped away. Further, the power to forgive is a substantial power and granting such power to the family or heirs of a murder victim is the issue. Families or heirs are often emotionally and financially invested in their decision to grant or refuse diya. There is an inadequate level of detachment that exists and which is necessary and gets on the surface upon implementation of clemency.

    So, should the relocation of pardoning to a private individual who lacks the level authority an executive possess be allowed?

    Conclusion

    Although the borders of both diya and clemency may appear to be similar, what covers within their substantive boxes differ. In understanding the principle of diya, legal scholars may look to clemency to provide a basic footing but will be required to delve into the technicalities of the diya principles through a different lens. Moreover, the diya principle's root of Islamic jurisprudence results in the questioning of whether it is compatible with international human rights law. Unlike clemency which is granted through political and judicial checks and applies the doctrines of sovereignty and separation of powers, diya has no legal implications.


     Federal Law No.3 of 1987 On the Promulgation of the Penal Code

     ni Article 28

     ni Article 29(3)

     PLD 2015 Supreme Court 77 (Criminal Appeal Number 126 of 2012) Zahid Rehman Vs State (Criminal Petition Number 568 of 2011):[iv]

    The courts also relied on Muhammad Akram vs the State (2003 SCMR 855)

     

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    Fri, 14 Jul 2017 18:00:00 GMT
    <![CDATA[Electronic Registration of Cases- Advantages and Legal Problems]]> Electronic Registration of Cases- Advantages and Legal Problems

    "The Internet is becoming the town square for the global village of tomorrow."

    -Bill Gates

    Introduction

    Dubai has evolved to become the marketing and commercial hub of the Middle Eastern region. A surfeit of investors, traders and tourists flock into the Emirate on a daily or rather an hourly basis. All of Dubai's biggest and most commendable feats have been due to its ability to take calculated risks and introduce the novel, bespoke and contemporary ideas. However, one could believe that disputes and legal matters within the region would eventually increase given the voluminous domestic and cross-border trade, an influx of investors and with the entry of diverse workforce. Therefore, this has simultaneously aided in the elevation of the number of lawsuits in the Emirate.

    To overcome these hurdles resulting from increased law suits the Dubai Courts recently launched an innovative service named Al Salfa which allowed parties to register their cases online and thereby removing the barrier as to physically submitting claims before the court. This is the first program of its kind in the Emirate, and is currently the basis on which cases are currently registered in Dubai. This new program promotes efficiency, speed, and ease, allowing users to register their cases at their convenience. In the first instance, this program was introduced in the year 2010 and was available only to registered law firms and lawyers in Dubai. Soon enough, however, this E-service became available to all clients, enabling them to register all types of cases, orders on petitions, provisional attachments and summary actions electronically. Virtually every matter including real estate disputes, commercial, labor, civil and personal affairs could be instituted under this new online system. Further, the authorities have also permitted orders upon petitions of all kinds, precautionary attachments, and other urgent matters to be instituted electronically.

    The governmental authorities, on the other hand, began to make use of Al Salfa by registering legal delegations, such as delegations in execution or notification. In fact, this service was embraced by the Free Zone Authority in Jebel Ali as well to register all it's labor cases through Al Salfa, thereby saving workers the time and effort it would cost them if they were sent straight to Dubai Courts.

    On their website, the Dubai Courts clarify that the method of online registration, uploading of the statement of claims, and the documents attached thereto shall be reviewed by specialists at the E-services section. The competent authorities, then, would review the details of the case and the papers attached thereto to ensure the validity of the claims and electronically communicate with the suitor to update him on the status of his application.

    Need for Intervention

    As advantageous and easy to use this new service is, legal problems do arise on its application, which we will further explicate in this article. We will review these problems and propose solutions that may be contributed towards the resolving of these problems, hoping that these problems will gather enough attention to lead to registration of cases in all courts, free of any legal problems that may affect the rights of the litigant.

    The positive characteristics of electronic registration of cases via the Al Salfa program are numerous. Cases can be registered at any time and from any place in addition to the smoothness and rapidity of obtaining files and information, saving time, environmentally conscious reduction of paper waste, avoiding overstocked lawsuit files and reducing crowding in court buildings. Furthermore, this service is even available to specialists, judges, executives, bailiffs, secretaries and litigants. In the manual registration of claims, we see problems arising with names of companies that do not actually exist due to its legal form or a change in its name. Electronic registration removes this hindrance as well, as names and addresses are audited in order to establish the actual existence of natural and legal persons before judgment is passed.

    Despite the clear upsides to the usage of this service, the legal problems that arise from the application of this program might affect the validity of claims and procedures, leading to a judgment that doesn't accept a lawsuit or challenge.

    According to the laws stipulated by the Dubai Courts, there is a specific time period during which filing of lawsuits or registration of appeals is permitted and valid. The problem arises when we realize that electronic registration of cases is not technically done on the same day since it is subject to aforementioned reviewing and auditing, which could take months depending on the type of case that is filed.

    The dilemma here is to figure out if the date of electronic submission is to be considered as the date of registration of a case or not.

    Fortunately, however, the Court of Cassation resolved this dilemma by deciding that the date of submission of an electronic application should be taken into consideration [i]. Furthermore, Federal Law No. 10 of 2014 (the Amendment), states in Article 162(1)"The appeal shall be filed by virtue of a memorandum submitted to the Case Management Office at the competent court of appeal. The memorandum shall be immediately registered either in the relevant register or electronically…" Thus, in accordance with the aforementioned law, the date of submission is formally considered the date of filing the appeal, thereby conforming to the time period restrictions on cases, as stipulated by the law.

    In order to file a challenge before the Court of Cassation or Court of Appeals, one must deposit a security with the treasury in order to ensure the validity of the deposit and for orderly compliance.

    Under Article 37, the Law of Civil Procedure, it is stated that [ii]:

    {i.         - The claimant, upon submitting the challenge by appeal in the lawsuits relating to rights, should deposit a security amounted to (AED 1000) in the court treasury.

    {.          - The claimant, upon submitting the challenge by cassation in the lawsuits relating to rights, should deposit a security amounted to (AED 3000) in the court treasury.

    Given that matters were manually registered prior to thelaunch of Al Salfa, there were no problems depositing a security in person. The Court of Cassation has decided in several judgments that in cases where a petition was challenged before the Court of Cassation and where such petition did not carry a proof as tothe payment of fees, such petition would not be accepted as a challenge by the court [iii]. (unless the claimant is not exempted from paying the fee as decided as per the provisions of the law.) However, the aforementioned article 162 of the Amendment doesn't mention the deposit form of security required for an appeal when matters are registered electronically, nor makes any reference as to any such requirement. This legal conundrum, to us, is one of the most concerning contradictions that arise due to the application of the Al Salfa E-service.

    Conclusion

    As we see, the creation of an E-service like Al Salfa has definitely eradicated several cumbersome problems when it comes to registering cases manually and has proven incredibly advantageous to it's users. It is a fascinating and commendable service that does its users a whole lot of good. However, there are some legal complexities that might complicate the usage of this service and encumber it with a sense of powerlessness.

    As a solution, our proposal to a concerned legislator would be the amend the law relevant to the judicial fees of Dubai Court in order to not contradict the Law of Civil Procedures [iv], or perhaps, to cancel the condition of depositing a security upon submitting the statement of appeal. This would be a good way to avoid any doubt regarding the acceptance of appeals that are registered electronically.


    [i] Judgment issued by the Court of Cassation in Dubai on 7/2/2016 in challenge number 709/2015-comemracil.

    [ii] Federal Law no. 11 of 1992

    [iii] Judgment issued by the Court of Cassation Dubai on 15/6/2010 in the challenge No. 144/2010- commercial.

    [iv] supra

     

     

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    Sun, 01 Jan 2017 12:00:00 GMT
    <![CDATA[The Law Surrounding Eavesdropping, and Privacy ]]>

    Margarida Narciso discusses the legal implications of violating private or family life of individuals under the UAE Law. Advancement in field of technology, social media and phone apps may lead younger generation to eavesdrop, resort to clicking images or videos and post them on social media. This however may affect personal or private matters of others. Continue reading this interesting article to understand the nuances and legal effects… 

      S-. told her boss that she was stealing funds from the company and he recorded the confession with his mobile phone. L-suspected that his wife was having an affair with a work colleague and asked a private detective to take pictures of them together at his villa. J-recorded with his web camera a conversation in which his gardener threatened and sworn at him.   These three stories despite being fictitious have something in common with many cases. S., L. and J. recorded or captured through electronic devices private conversations or scenes, without the consent of the interlocutor and accordingly, committed even without their knowledge in a criminal offense that might lead into their criminal prosecution.  Article 378 of Federal Law No. 3 of 1987, concerning the United Arab Emirates Penal Code as amended by the Federal Law No. 34 of 2005, reads as under:   "A person shall be punished by detention and the fine if he prejudices the privacy of the individual or family life by committing any of the following acts other than in the events as permitted by law or without the consent of the victim: a. to eavesdrop, record or transmit by any device of any kind whatsoever conversations in a private place or by way of telephone or any other device. b. to take or transmit by any device of any kind whatsoever a photo of a person in a private place…" If such acts as set forth in the preceding cases during a meeting in front of those present at the meeting, the consent of such persons shall be presumed. The same penalty shall apply if a person publishes by any means of publicity news, photos or comments related to the private life or family life secrets of individuals, even if they are true.   The increase and trivialization of devices, models and means of recording, capturing or retaining private moments or familiar scenes has originated, to the same extent, an increase of violations of this article of the penal code. And it should be noted that most of the times the person who commits the crime does not know that he is participating in a criminal offense that can lead to detention and fine in addition to the ever-present possibility of a civil action for damages and compensation. In fact, and being something that can be considered an evidence against another crime perpetrated by the interlocutor, the holder of the recording or photography will try to use it to his favor, unaware of the possible consequences.   From the layman's point of view, it might be difficult to explain two key points related to this topic: the first question would be why is eavesdropping, recording or transmitting not permitted or why is it considered a crime; and the second would be the reason why the recording can't constitute an appropriate mean of proof.   The first question regarding the prohibition contained in Article 378 of the Penal Code and the penalties stated is explained essentially by the need of protection of the right of private intimacy of each person. Back in 2014, a worker was arrested for having recorded a video with his mobile phone a traffic accident that killed 13 people involving a bus. Although it was recorded in a public place, the bodies of the victims were shown as well as the wreckage of the vehicle, a clear disregard for the privacy of those involved. In this case it is easily understandable why the worker was arrested and it is important to note that he breached the privacy of those involved in the accident by recording the movie, hence the crime was committed at that point, although he was caught only when he decided to disclose it to the public.    The second question the non-acceptance of these recordings as a legal mean of evidence - can be a little harder to understand, especially when the file would likely evidence the commission of a crime.   If we look into a 2011 decision issued by the Ras Al Khaima's Court, we will verify that a woman has been sentenced to one month in jail – that has been suspended – and a fine of AED 200/- (UAE Dirhams two hundred), for having revealed and given to police that she has recorded a telephone conversation in which a man who she had hired and paid to provide her a service confessed he didn't do so, despite having received the full payment. By doing so – recording the call without the other party's consent or legal authorization (that has to be given by Public Prosecution, in advance, which in most cases is not easy to obtain), incurred the crime of breach of private life and was, eventually, convicted for the same.   In 2013 a similar case was reported by the media: a situation where the physical attack of a driver by a government official was filmed by another driver, whom later uploaded the video on Youtube. The latter was detained by police and charged with violation of privacy.  It is important to note that, in fact, in both cases recordings would not be admissible as evidence against the offender in court - it should be stated that the law prohibits the record of sound or image of a person without his consent or without legal authorization. Furthermore, it is interesting to highlight that in the second case, the video became public because of its public disclosure and hence the violation of the privacy is more obvious, however, even if it had been only shown to the police - as in the first case, both will be considered crimes.   UAE Law No. 35 of 1992, concerning the Criminal Procedural Law, in its article 221, clearly states: "The procedure is void if the law expressly provides for its voidance or if defective to the extent that the procedure did not reach its objective." This means that if we use something illegal to proof a fact, the evidence itself will be illegal, and accordingly, it won't be considered by the Courts.    The Dubai Court of Cassation in Case 67 of 2007 (decided on 20 May 2007) has held that "Under article 269 of the Law of Criminal Procedures, a conclusive judgment passed on the merits of a criminal action (whether relating to acquitting or convicting), will have probative (to seek proof or evidence) force or effect by which the criminal courts are bound. Such probative effect is restricted to the facts necessarily determined for the purposes of passing judgment therein, with regard to the occurrence of the physical act forming the basis of criminal liability, its legal description, and the attribution thereof to the doer."1    Hence, in the first case by recording the conversation, or in the second by recording the video,  and even if they evidence crimes, those who made it used illegal and unlawful means, and therefore, should not constitute or be accepted as a legal mean of proof in one hand, and in the other should originate a criminal action against them.   The United Arab Emirates, although is relatively newly regulated legal market, has witnessed a considerable number of violations of this penal code article – the huge amount of available technological devices leads to an obvious increase of situations in which private intimacy is breached, through recorded telephone calls, in-person conversations recorded by video capturing sound and image, that later will be used or published without consent of the victim. And, despite this trivialization being in most of the cases useful, the fact is that might be cases that it became a problem for the person who shot them.   We can't forget that the law - and specifically this article 378 of the Penal Code over all exists to protect people and their privacy. This prohibition will avoid, in most of the cases, public judgments: the video, photography or recording, decontextualized, will probably transmit a wrong or different overview of the facts and of the situation itself. It must be borne in mind that the statement of witnesses is accepted in court and is one of the most used legal means of evidence in court, opposite to what happens with these recordings.   It is also important to refer that, in its last paragraph, the article 378 of the Penal Code also states that "the devices and other objects that may have been used in perpetrating the crime shall, in all cases, be confiscated and an order shall be given to erase all relative recordings and destroy the same." So if you have recorded, have been the victim, witnessed and filmed or by any means captured some act or fact, whether it constitutes a crime or not, and you are not too sure whether you should use it or not, do not hesitate ... consult your lawyer!  

     

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    Tue, 12 Jan 2016 12:00:00 GMT
    <![CDATA[DIFC Wills]]>Lord Krishna was asked by one of his disciples what was the most astounding thing in the Universe. His answer was that a man wakes up each morning and believes that he will live forever despite knowing that he will not. Death is a morbid subject and that is probably the number one reason why individuals do not like discussing the idea of creating a will as it inevitably brings up the topic of mortality. United Arab Emirates- a country where eighty percent of the population is made up of expatriates and is under the aegis of Shariah or Islamic law, it becomes all the more imperative to have a will in place. Court Uncourt has impressed upon the importance of having a will on several occasions.    To reiterate, in the event of death without a Will, one's assets will be distributed in accordance with Shariah law, regardless of the deceased's nationality or religion. Shariah law is the law as dictated by the Islamic Holy book, the Quran which specifically dictates conditions of inheritance. Generally speaking female heirs of the deceased are entitled to half the entitlement endowed upon the male heirs. The custody of children is not automatically granted to the mother but preference is given to the male descendant from the father's family. The deceased's bank accounts and assets are frozen and the matter has to be heard by Dubai Courts before a judgment can be pronounced. All in all, the matter of inheritance where a will is not present only adds to the woes of the members of the family that have just dealt with a grave loss.    It is a fact that UAE succession law can be complicated, difficult to get accustomed to and sometimes contradictory. For example the Civil Transactions Law in article 17 no.1 states that "Heritage shall be governed by the law of the testator upon the death thereof" but contradicting the same is article 17 section 5 where it is stated that "the law of the United Arab Emirates prevails regarding the will issued by a foreigner about the real-estates thereof in the State". Therefore, the first and second instance courts will preferably choose to apply the rules and principles of Shariah to inheritance cases relating to real estate. As these principles differ from what is written in the will and from what would be the wish of the testator, the case will have to reach the Cassation stage for the testator's law to be applied. In practice only the Supreme Court can decide the fulfillment of the will as per testator's wish and as per the rules suggested and provided by the will, if solutions that are not in accordance with the Shariah Law have been chosen by the testator. It is also important to note that during the time that the courts take to reach a final decision, the assets will be frozen, which means that the heirs won't have any possibility of economic exploitation. To overcome the complication related to the same, the government of Dubai relied upon the Dubai International Financial Center to draft and execute the new law on wills that would meet the expectations of the residents and foreign investors alike. The law comes into effect on April 30, 2015 and has been described as "The first Common Law, English wills and probate service for non-Muslims in the Middle-East."    The UAE has continually evolved within the legal gambit and imbibed the best from existing legal systems from across the globe.   Thus, in an innovative action in the region and following the example of existing systems in Malaysia, Singapore and Hong Kong, for the first time in the Middle East it will be possible to register wills in accordance with international principles of Common Law before the authority that will be known by DIFC Wills and Probate Registry. The establishment of this new service is an attempt of DIFC to encourage the investment in Dubai by residing expats, providing legal certainty for the inheritance, by the existence of a simple and efficient mechanism for non-Muslims to pass on their assets after their death.   In line with the Memorandum of Understanding on this matter that has been signed by the DIFC and the Dubai Courts, the matters of succession will now be expedited and taken care of by the DIFC Courts.   These new types of will be available to anyone above the age of maturity, non Muslim, whether a resident of Dubai or not, and it will regulate the succession of any property of the testator, provided that the testator has assets in Dubai. It is essential to point out that any movable asset of the testator including but not limited to shares in a business, personal property such as gold or jewelry, gifts that the testator would like to bestow upon his relatives and/or family upon his death. Stocks, bonds, bank accounts will all be regulated by this new system. Regarding the estate, the draft of the new law clearly states that "a Will may give or dispose of Real Estate or Personal Estate situated in the Emirate of Dubai, to which the Testator is entitled at the time of his death, whether the Testator became entitled to it before or after the registration of his Will, and shall not govern succession to any other Property", which means that it is assigned to DIFC Wills and Probate Registry regulative competence not only for property situated on the DIFC, but for those located in any area of Dubai. On the other hand, if the testator has real estate in any of the other Emirates, for now, the common procedure in court will have to be followed, to the extent that this new DIFC system only have power to regulate estate in Dubai.   Another situation that has been foreseen by the new DIFC law is the appointment of an interim Guardian for a Minor who is habitually a resident with the Testator in the Emirate of Dubai. At the outset, it is important to highlight that the Western and the Sharia concept of guardian are different: if to any Western the Guardian will be someone in whom the parents will trust in case of their death to take care of their child(ren), that person could a friend, a family member or someone that the parents trust. According to with Shariah Law the Guardian will always be a member of the family. Thus, keeping this in mind and the high number of expats in Dubai; it is essential for the parents to choose someone they trust and they find suitable for the mission and appoint a Guardian. The new Rules state that the Testator who has "parental responsibility for a child who ordinarily resides with the Testator in Dubai may appoint in accordance with the applicable law of the child a Guardian or Guardians of the child" . This parental responsibilities are also defined by the DIFC as "all the rights, duties, powers, responsibilities and authority which under the law of the UAE a father has in relation to the child and his property and includes the right to remove the child from the UAE and the DIFC".    Finally, the system to register and probate the will is simple and straightforward. The interested has to make an appointment through the DIFC website. Along with the appointment confirmation, information on the requirements, the documents needed and the template for the Will would be sent forth by DIFC. Using a template is another step in the right direction as it will make the process less cumbersome. On the appointment date the testator needs to bring his/her documents, one witness, and the appointed guardian (if applicable), along with identification documents for each. The Will shall be reviewed by the DIFC and signed in their presence. A hard copy of the signed Will shall be provided to the Testator, if requested, while the original will remain under DIFC's custody to be scanned and turned into an electronic document. The same will be stored for 120 years from the date of birth of the Testator .   From a legal perspective and constant liaison with expats who reside and/or have invested in Dubai, this new system is a welcome change for those that have always been concerned about safeguarding their inheritance. It is always recommended that when partaking in succession and inheritance matters, it is highly advisable to consult legal representatives to ensure that all regulations and requirements are complied with to ensure that the Will remains valid and effective. Yes, the matter of Wills brings with it a thought of gloom but as rightly said by Benjamin Franklin that there is nothing in this world that is certain, except death and taxes.    ]]>Fri, 20 Nov 2015 12:00:00 GMT<![CDATA[Can You Choose Your Judge? ]]>  

    For a variety of reasons, it is highly likely that most people's instincts would incite them to answer "no"! However if we peruse UAE legal texts we will find that actually, in most cases, the answer will be "yes"! 

      Litigation is one of the basic rights guaranteed by most world constitutions, as well as the Universal Declaration of Human Rights. In fact, a state of institutions and laws cannot be achieved unless it gives the right of litigation to all citizens and residents living upon its land. Laws merely organize how to litigate and outline the procedures which should be followed, and courts are formed and judges are appointed based on these laws.   When a person resorts to litigation, he or she submits a statement of claim that is reviewed by a judge or a bench of judges. To this extent, the litigant in question will usually have no input in choosing the judge or judges. However, in the event that a person desires to choose a certain court or judge to adjudicate his case for any reason, is he allowed to do so or not?    Based on a study of the judicial system, it is clear that a person may choose his judge and/or the court in which his case is heard. In some cases if the law does not grant the right to choose any judge or tribunal, but the right to choose the same from a given list. An example of such would be a case in which multiple courts had jurisdiction over a certain dispute, and the claimant may therefore choose the court that it desires. The law also allows people to agree that a certain court shall have the jurisdiction to consider any disputes that may arise. However a case may be filed in an alternate court rather than the one considering the case, and then be transferred. It is worth noting that there is a clear provision in place allowing for the nomination of  an arbitrator in cases whereby arbitration is the agreed dispute resolution forum. Consideration should also be given to cases whereby a party finds out that the judge considering his case has made a fatal error or cheat in his work – here, he shall have the right of adversarial against the judge in question pursuant to the procedures set by law. This is eventually a choice of judge.    Based on the foregoing, then, it appears that the following are all areas of consideration when answering the question posed by this article:   1. Agreement on the jurisdiction of a certain court 2. Choosing from among many specialized courts 3. Transfer among courts  4. Choice of the arbitrator  5. Disqualifying judges and arbitrators   1. Agreement on the jurisdiction of a certain court    When agreeing a contract, the parties to the same may nominate the jurisdiction for the governing of any dispute that may arise concerning the contract's interpretation or execution. This agreement will confirm assent to the court competent for considering the dispute. For example, if both parties to a commercial contract are headquartered in Dubai and the contract is signed in Dubai, it is likely that the agreement will state that the Dubai Courts shall have the jurisdiction to settle any disputes. In this situation there are no obvious problems. However, an agreement may also defer jurisdiction to a court other than the one holding clear geographical jurisdiction. For example, the parties may agree to submit to the jurisdiction of the courts where the claimant's headquarters is located. This is so as to ensure that the rules of local jurisdiction are set in favor of the opponents and have no relevance to the public system. Therefore, parties may agree on contradicting such rules. However according to Dubai Court of Cassation the jurisdiction in Dubai is a judicial entity that is independent from any federal judiciary, and that Dubai courts shall have jurisdiction over all disputes except for the disputes specified by article (102) of the constitution. Such courts shall be limited to their competences without negative or positive contradiction, meaning that they shall not waive their competences and shall not take on competences of other national courts. Jurisdiction in this way is a public system and parties may not agree on contradicting it - but based on the foregoing this is not relevant to local jurisdictions that are considered between courts of the same judicial department.     It is important to note that no agreement between parties may breach procedural jurisdictional laws at state level. An example here would be the way in which parties to a leasehold contract cannot contractually vest the jurisdiction of any disputes in the courts, when state law requires that all rental disputes must be referred to and considered by the rents committee or rental dispute resolution center. Likewise, parties may not agree on the jurisdiction of the plenary court (consisting of three judges) to consider a case within the jurisdiction of the partial court that is composed of a single judge, and may not agree that the Dubai Court shall have consideration of any dispute concerned by the Abu Dhabi Court.   2. Choosing from among many specialized courts    Law may provide for the jurisdiction of several courts at the same time, thus meaning that a claimant may choose from amongst the same. For example, the Personal Status Law provides that jurisdiction in expenses claims matters is vested in the court of the Emirate in which the plaintiff or defendant is resident, whereas the Civil Procedure Law states that the competent court shall be the court in any Emirate where any of the defendants, if they are many, is resident. The fact that a party has to choose a court from amongst a selection has the effect that the party is, to some extent, going some way towards choosing the judge who will adjudicate in his lawsuit. However in the case of multiple defendants, it is required that such diversity is real. A diversity is not real if the intention is simply to submit to the jurisdiction of the court before which the lawsuit is raised, whether or not its existence is known by the trial court with authority to collect and understand the reality of the case as it pleases, without forcing him to resort to a particular court.   3. Transfer among courts   If the legislator is bringing a series of associated cases, it may be the case that he is desirous of having such matters considered by a single judge or a single court in order to avoid conflict of judgments. The UAE law therefore provides for the referral of cases to the court before which the last conflict is raised. The referred court is committed to the consideration of the matters. Legislation also provides that in the event that a case is filed before a court other than that which has been specified in a lawful agreement between the parties, then the court may order transferring the case to the forum agreed upon. The referred court is, again, committed to its consideration, unless deemed incompetent to consider the matter locally or qualitatively. This additionally infers the possibility of choosing a judge, but with the qualification that the agreed tribunal must be competent to consider the case. It is also of relevance that matters may not be referred from the courts to arbitration as a result of conflict, because the rule is that referral is only allowed between courts within the same judicial department. The best example is that referral from the Dubai courts to the federal courts is not permitted, as the judiciary in Dubai is a judicial entity independent from the federal judiciary. Such referral is limited to cases in which the court holds that it is not qualified due to the type of lawsuit or local jurisdiction.   4. Choice of arbitrator    Arbitration is a good example for the selection of judge that separates the rivalry between parties to a dispute, especially as arbitration is regarded as the first form of judiciary in many early communities. However, with the increase in the number of lawsuits filed worldwide and slow litigation procedures, the need for urgent arbitration arises. Arbitration allows a party not only to select their judge, but also to elect the legal rules applied by the arbitrator in the specific case (within the limits this does not violated public order).  The arbitration clause contained in the contract or in a subsequent agreement between the parties, which may include agreement on the number of arbitrators. This number may either be one, three or five, but the number must be odd otherwise the arbitration agreement is null and void. This is so that an individual arbitrator may be chosen by one party and approved by the other, or so that each party may choose one or two arbitrators, and then the arbitrators selected may appoint the remaining member of the panel. If no agreement is reached with regards to the choice of arbitrator, the choice shall be vested in an independent entity such as the arbitration center, a body such as the lawyers bar, or even the courts.   5. Disqualifying judges and arbitrators   The law may provide for circumstances in which the litigant may choose a judge as explained above - however, these cases are not considered as the general rule. More often than not, a judge will be appointed by the courts and the parties to a case will have no input in the decision. Yet in such cases, it may be that a litigant considers a judge invalid to consider his claim either for personal or technical reasons. When this occurs, should the litigant stay silent, or does the law provide a way in which the parties may challenge the same in order to ensure satisfaction and total conviction in the justice of the resulting judgment?    The cases in which the judge may be disqualified are outlined in the UAE Civil Procedure Law, and include (but are not limited) to feuds between the judge (and/or his wife and/or relatives) and the litigants, prior friendships (specified as "habitual dining" or having lived together) between the judge and any of the litigants, the judge's receiving of a gift given by one of the litigants, the appointment of the judge as an arbitrator in a previous matter between the parties, and any other friendship/enmity between the judge and one of the litigants which may result in impartiality.   A judge will also be invalid to consider in the following cases:   -  If he is a spouse of one of the litigants; -  If he or his wife has an existing dispute with a litigant or his wife; -  If he is an agent for one of the litigants in his private works,  or a trustee or custodian, or a      presumptive heir of a litigant or the spouse of the guardian of a litigant or the custodian,      or is related by blood or affinity to the fourth degree with the such guardian, or one of the      members of the board and a manager in the competent company where such a member or      director has a personal interest in the case; -   If he or his wife or one of his relatives or in-laws of descent or for those whom he is an agent,      trustee or guardian, has an interest in the existing case; -   If there is between him and one of the judges' circuit a kinship or affinity to the fourth      degree, and in this case the latest judge is to step down; -   If there is between him and the representative of the public prosecutor or defender of an      opponent a kinship by blood or affinity to the second degree; -   If he had decreed or pleaded for a litigant in the case, or wrote about it even before he joined      the judiciary, or had earlier considered as a judge or arbitrator or expert and had been a      witness in it; and/or -   If he has previously filed a lawsuit against the respondent or submitted a report against him      to a competent authority.    The law states that the work of the judge and his judgments are invalid where the judge meets one of the above criteria, even if it was made under the agreement of the litigants. Finally, the judge may, even if valid for consideration of the case, let the President of the Court consider the approval on the decision of stepping down.         ]]>
    Wed, 08 Jul 2015 12:00:00 GMT
    <![CDATA[Family Matters-An Overview of Divorce and Child Custody in UAE]]>

    In the present day and age we can all agree that there is no such thing as a typical family tableaux. Although time, culture and location have always flavoured the "traditional" concept, nowadays we can no longer use such factors to predict the identity of the protagonists sat around the dinner table in any given family home. Regardless of location or culture there is a likely prospect that a residential unit may include a step-parent, siblings of different parentage, grandparents, cousins or a group of friends simply sharing a tenancy. This change may be attributed to a variety of factors, but it is undeniable that the increase in the number of divorces worldwide plays a part. In some areas (such as Las Vegas, where one can instantaneously marry for $60 and divorce for $109) the institution of marriage has never been afforded the respect it deserves, but the fact of the matter is that regardless of culture, religion, social practice, custom and timely values, divorce is a common and accepted reality of our era.

    The United Arab Emirates (UAE) is no exception, yet the nation is somewhat unusual in the sense that it houses a disproportionately large expatriate population. It therefore follows that the courts of the UAE see a large number of matters pertaining to foreign family issues. Consequently, when dealing with cases such as divorce, the courts are accustomed to hearing a plethora of beliefs, attitudes and expectations. Any person residing in a given jurisdiction will be bound by the governing law therein, and as such a thorough understanding of the UAE's marital and family laws, procedures and consequences is necessary for anyone considering the termination of their marriage through the nation's courts. However the UAE law also allows foreign nationals to divorce under the law of their homeland. This article is therefore designed to provide a comprehensive outline of the options available to those considering divorce, and to additionally consider various family rights with which we may be unfamiliar.

    Divorce under the UAE law is primarily dealt by Federal Law Number 28 of 2005 (the Personal Status Law - PSL). Certain provisions of Federal Law No.5 of 1985 (the Civil Code) also deliberate the issue. Originally under Shari'ah law six types of divorce were recognized, but modern family legislation recognizes only the following three types of divorce:

    a)      Talaq - Divorce by husband

    In talaq there are four stages including initiation, reconciliation, completion and the aftermath. The initiation stage commences immediately on the husband pronouncing the phrase "I divorce you". For the divorce to be official, three months have to elapse (without intercourse between the couple). This is known as the reconciliation stage whereby the couple have the opportunity to reconcile and, if they do not, may attend court. The completion phase begins thereafter - the wife becomes "non-mahram" to the husband and the pair must observe hijab rules. The aftermath is the final stage, which includes the husband caring for and supporting any children born of the union.

    b)     Khula- Redemptive divorce or divorce by mutual agreement

    In Khula the wife has the right to seek a divorce from her husband through the mutual consent of the husband or a judicial decree. It involves a woman paying her husband to gain his permission to allow her out of the marriage. Payment can be monetary or through some service provided to him. Her family might return his dowry - the goods or payment they received in exchange for their daughter as his wife. If he accepts, the divorce can move on to court for the tafriq process as defined below.

     

    c)      Tafriq - Divorce by judicial order

    Tafriq is a form of divorce in which the court intervenes. There are five grounds for valid tafriq applications: physical or emotional injury, irreconcilable differences, discovery after marriage that the husband has an incurable physical defect (i.e. impotence), failure to pay maintenance to the wife, or imprisonment or absence without reason by the husband for over one year.

    The law also lays down certain provisions whereby both spouses may ask for separation if this has been mutually agreed. We have already established that expatriates and Non-Muslims seeking divorce have the option to opt for divorce under the applied law of their homeland whilst remaining in the UAE – but how does this work in practice?

    The initial step is to approach the Moral and Family Guidance Section at the court. This will result in a "counselling session" involving a counsellor and both the husband and wife. The session shall be focused on discussing whether or not reconciliation will be possible, and after the meeting the counsellor will report to the Judge. It is important to note that the judge must be absolutely convinced that the marriage is irreparable in order to further divorce proceedings. Further to the session a couple will be offered a three-month period to reconsider their decision, and if they insist on proceeding thereafter their papers will be forwarded to the court. It is inevitably simpler if the divorce is uncontested with a mutual agreement already in place between the husband and the wife, thus negating the need for the court to impose a settlement arrangement.

    If no prejudice is proved but disagreement continues between the spouses without the family guidance committee or the judge being able to propose a resolution, the judge shall appoint two arbitrators (from their respective families if possible) by no later than the following session. When appointing the arbitrators the judge shall also issue a timeline which shall not exceed 90 days, and shall lay out the date by which the task must be completed. This period may later be extended by a court decision. The two arbitrators shall investigate the causes of dissension and exert their efforts to conciliate the spouses. The arbitrators shall submit a report to the judge and the judge may, if he so desires, base his judgment on the arbitrators' decision. However it is highly likely that if the arbitrators have failed to conciliate the spouses, the divorce shall be granted. It is therefore evident that regardless of the legislative system applied, the emphasis of divorce proceedings in the UAE is on the encouragement of reconciliation.

    The UAE law additionally contains provisions to ensure that a wife retains entitlement to financial support from her husband if she is/was lawfully married to him. It shall not matter if she is from a different religion or is technically financially independent. The maintenance amount is calculated in accordance with the husband's financial stability and status. If the husband divorces his wife at his exclusive wish, she shall be entitled to enjoyment maintenance plus the waiting period maintenance depending on the husband's condition and subject to a maximum of the maintenance of her equals. The judge may allow the payment in installments depending on the husband's financial capacity, however he shall also consider the way in which any payment schedule would impact on the wife.

    Any discussion on the subject of divorce will inevitably combine a collection of contrasting views and opinions. And in the midst of the debate, it is possible that crucial connected issues, such as child custody, maintenance and the assigning of assets may fall by the wayside. A parental dispute in relation to custody and maintenance of the child is likely to be covered under the PSL. The basic principle underlying the laws on the guardianship of a child is based on the question "what is the child's best interest?" – a concept commonly known in law as the Welfare Principle.

    Under UAE law a father is regarded as the natural guardian of a child. A distinction is made between a "custodian" and "guardian"– a guardian is bound by the duties of financially maintaining a child and making any decision with regards to his or her education and upbringing.[1]A custodian, as the word suggests, has the actual custody of the child and is obliged to raise him or her whilst ensuring all day to day needs are met.[2]

    In deciding on such matters the courts of the UAE will primarily consider the age of the child and the mental state of the parents. The law nonetheless lays down certain conditions to be fulfilled by either of the spouses in order to be granted child custody. The law requires the person to be a mature adult of sound mind, honest, capable of raising, caring for and attending to the child, free of serious infectious disease, and free from criminal convictions.[3]Further, there are additional guidelines to be satisfied according to gender of the person seeking custody.

    With regards women the guidelines stipulate that she should not be remarried and must have the same religion as that of the child - unless the court rules otherwise in the best interests of the child, on a condition that custody period shall not exceed 5 years, whether the child is male or female. Occasionally, the mother is granted custody of children up to a certain age, whereas the father is always considered the guardian. The mother may be awarded custody of girls under the age of 13 and boys under the age of 11.[4]Later, when the child is of the requisite age, the custody of the child may be transferred to the father should he so desire. However if the court rules the mother to be incompetent, custody of a child (regardless of age) can be given to the father or to the child's grandmother on the father's side.

    As for men, the law requires that the household must encompass a woman (such as a grandmother or aunt) fit to be custodian of the child, to be "Muhrem" if the child is female. This woman must be of the same religion as the child.[5]

    Even in cases whereby two parents are married to each other, in the event of death of the husband the custody of the child becomes a subject of concern. Following the death, the child shall be taken into institutional care until the court hears the matter and (most likely) passes guardianship to the mother. In order to avoid the removal of the child from the mother's care in such situations the assigning of an interim guardian is crucial. Therefore it is vital that a father includes in his will (or in a separate, endorsed and legally-binding document) an interim child custody agreement, affirming that the child shall be under the guardianship of the surviving parent or any other family member nominated in the agreement until the formal guardianship order is passed by the court.

    Whether contested or agreed by mutual consent, matters such as divorce and child custody are universally acknowledged as being delicate issues. Indeed, the Holmes and Rahe "Stress Scale" specifies divorce as being one of the most stressful life events a person can go through. It is therefore essential that the practical steps are handled in an efficient, sensitive and case-appropriate manner in order to ensure a smooth and effective resolution for all parties involved. STA welcomes all enquiries pertaining to family matters, and ensures to afford every enquiry the respect and sensitivity that each family deserves.

    ]]>
    Wed, 10 Dec 2014 12:00:00 GMT
    <![CDATA[IVF- Maybe Baby]]> "And the question is always "When are you going to have kids?" Rather than "Do you want to have kids?" 

    The World Health Organization (WHO) defines infertility as the inability to conceive a child. It should not come as a surprise that owing to lifestyle changes, food habits and the societal encumbrances in general, it is now indicated that one in every six couples experiences some degree of difficulty when attempting to have a child. As natural as a phenomenon it may be, the conception and delivery of a child has been a medical challenge for many years.

     On July 25, 1978, a young couple Lesley and John Brown who had to bear the brunt of media attention amidst controversy and accusations of encouraging the creation of "frankenbabies," had their dream of becoming parents come true when Lesley gave birth to a baby girl who remains known as the world's first test tube baby in the United Kingdom. Over the years, with medical technology grown leaps and bounds, in vitro fertilization (IVF) has become a conventional medical treatment. In vitro fertilisation (IVF) is a process where an egg is fertilised by sperm outside the body. The technique involves monitoring and stimulating a woman's ovulatory process, removing eggs from the ovaries and letting sperm fertilise them in a laboratory. 

     Yes, the treatment still remains reserved by those who can afford the costly technology and has also been a topic of discussion relating to legal implications it gives rise to. This article discusses the approach of the UAE legal regulators and policy makers to this medical treatment.

    When a woman undergoes IVF treatment, she may end up with multiple fertilized eggs which are better known as embryos. Upon testing, the best one or two are implanted into the woman and the other embryos are frozen in case the treatment fails or if the couple wishes to have another child in the future. Federal Law no.11 of 2008 outlawed the process of freezing and storing eggs which resulted in innumerable embryos having to be destroyed. The medical experts believed that this increased the cost of the treatment and was also counterproductive in terms of treatment that had to be administered to the woman. The treatment is a complex one as it employs stimulating a woman's ovaries to produce more eggs than normal which is arduous for the body. The hormones that are administered have been linked with causing significant harm which have resulted in death. A number of studies conducted in the United Kingdom and other European countries have linked an increase in female mortality where the women have undergone or are undergoing IVF treatment. There is no known biological limit for how long the frozen embryos are viable but a number of countries have set limits of 10 (ten) years.

    United Arab Emirates has been at the forefront of driving medical tourism towards the region. In the year 2012, the number of medical tourists that visited Dubai was over 100,000 and the revenue generated was over 600 million Dirhams. The Dubai Health Authority has armed itself with a striving strategy which they hope will attract more than 500,000 medical tourists a year. Reproductive assistance is the most sought after and traveled for treatment in UAE. The reasons for the rise in its popularity has been significant since the implementation of the Cabinet Resolution no.36 of 2009 which changed the law and allowed for medical centers to preserve and freeze the excess embryos. This resolution also allowed private clinics and specialists to be granted licences for this treatment. Prior to this resolution's implementation, only government hospitals and clinics could administer this treatment.

    The treatment is not new but all across the world there are different regulations that govern this practice. In some countries, there is strict legislation regarding who can have IVF treatment. In Turkey the legislation insists that only married couple have access to IVF. In New Zealand, there is a requirement of being a nuclear family to raise the child. The United States of America has a much more lax approach and they permit single people and people in same sex relationships to have access to IVF and surrogacy. There are also religious restrictions placed on this treatment. A Catholic and Sunni muslims are not permitted to consider this form of treatment for infertility problems. It must be noted that most of the legislation focuses on prohibiting negative practices and places a moral bandwidth to the treatment.

    In the case of Evans v United Kingdom which was a landmark case at the European Court of Human Rights had a significant impact on fertility law not only in the United Kingdom but also on other European Union nations. In this case, Ms. Evans and her fiancé separated after the eggs had been fertilized. The man in question decided to approach the medical facility and have them destroy the eggs as he wished to withdraw consent. In the UK and other EU nations, the legislation states that both parties must provide consent. Ms. Evans went to the High Court to pursue the treatment and to request the court to dismiss her ex-fiancé's wishes. The High Court and then House of Lords both ruled against Ms. Evans. She approached the European Court of Human Rights where the ruling of the UK courts was upheld. It is essential to note that this case was one of the many that have raised unprecedented issues for a number of legal regulators.

    It is imperative that policy makers, government bodies and medical experts come together to understand that the value and significance of any embryo is relational, personal and thus infinitely variable. An embryo cannot be granted a moral or legal significance as distinct entities. 

    ]]>
    Thu, 04 Dec 2014 12:00:00 GMT
    <![CDATA[Там, где есть воля, там есть путь: Часто задаваемые вопросы о законе наследования - Дубай и ОАЭ.]]> Там, где есть воля, там есть путь: Часто задаваемые вопросы о законе наследования - Дубай и ОАЭ.

    "Мы не должны забывать, что для наших потомков в их время будет также важно быть успешными, как и для нас в наше время."

             Теодор Рузвельт

     

    Исламские законы наследования, которые здесь уже обсуждались, могут быть практически реализованы во многих существующих западных системах законодательства путем написания действительного завещания. На самом деле, для тех мусульман, которые живут на Западе, завещание становится существенной необходимостью для предотвращения нежелательного использования их имущества после смерти. Завещание должно соответствовать законам страны, для того чтобы быть исполнено без каких-либо юридических проблем. Важно отметить, что если завещание пишется в соответствие с законами ОАЭ (в случае экспатриантов), то оно также должно соответствовать законам Шариата и не должно противоречить ни одному из его принципов.

    Планирование наследования это термин, используемый для планирования распределения имущества лица после того, как оно покинет этот мир. Если человек умирает без оставления завещания, имущество умершего распределяется в соответствии с законами страны. Другими словами, если у вас нет завещания, то нет документа, регулирующего распределение вашего имущества. «Имущество» относится не только к недвижимости, но и к любым ценностям, таким как денежные средства, банковские счета, машины, мебель, книги, облигации, инвестиции, ювелирные изделия, наследство семьи и др. Ваша «Последняя Воля и Распоряжение» является документом, описывающим в точности, что бы вы хотели сделать с вашим имуществом в случае вашей смерти. Документ может охватывать все аспекты вашей жизни, от физических активов, таких как недвижимость, инвестиции и наличные средства до ваших последних пожеланий.

    Вопрос 1. Зачем нужно завещание? Какова необходимость и каковы риски, если его нет?

    Завещание всегда важно, чтобы обеспечить права на собственность владельца в пользу его/ее наследников в случае его смерти. Оно определяет последующего владельца собственности, и после вас указанное лицо будет заботиться или вступит во владение активов в случае вашей смерти. Важно написать завещание и исключить все риски будущих споров или возможность, что государство конфискует собственность в случае отсутствия завещания. Если умирает экспат в Объединенных Арабских Эмиратах (ОАЭ), банкам предписано судом заморозить все операции по счетам умершего, в том числе по совместным счетам. Даже совместные активы между мужем и женой будут заморожены до тех пор, пока не выяснится наследство. Однако, законы Шариата отдают предпочтение урегулированию обязательств умершего до распределения активов, поэтому размораживание счетов и активов может быть произведено по приказу Шариатского суда, только если существует заверенное завещание. Этот процесс направлен на защиту любых платежей, которые должны быть выполнены после того, как экспат умирает, такие как непогашенные кредиты и долговые платежи. Уместно отметить, что при отсутствии завещания в ОАЭ как мусульманской стране, собственность может не перейти человеку, которому бы вы хотели. Закон Шариата автоматически применяется к мусульманам и немусульманам владельцам собственности, когда они умирают в ОАЭ.

    Вопрос 2. Будут ли законы наследования и завещание моей родной страны (в случае экспатов) преобладать над местными процессами ОАЭ, которые следуют принципам Шариата?

    В случае, если человек любой религии умирает, не оставив завещания, суды могут придерживаться законов Шариата в отношении наследования имущества и опеки над детьми. Вопросы наследования в ОАЭ управляются, главным образом, двумя федеральными законами: Закон о Личных Делах №28 от 2005 г. позволяет экспатам-немусульманам, живущим в ОАЭ использовать закон своей родной страны, чтобы распределить свои активы в ОАЭ. Это независимо от того, имеет ли экспат-немусульманин юридически заверенное завещание в своей родной стране. Другими словами, потомки могут подать заявление на завещание в своей родной стране после кончины члена семьи, которое позволит им распределить активы в ОАЭ так, как этого хотел умерший.

    Вопрос 3. Является ли закон ОАЭ применимым только к гражданам ОАЭ, или ко всем мусульманам, или даже ко всем экспатам независимо от национальности и религии? 

    В случае отсутствия завещания, в ОАЭ как мусульманской стране, закон Шариата применяется к мусульманам и немусульманам владельцам имущества в случае их смерти. 

    Вопрос 4. Я владею бизнесом в партнерстве в Дубае. Я владею большей частью бизнеса, за исключением части, которая должна принадлежать местному партнеру по действующим законам. Распределение прибыли предусматривается сторонним соглашением. Я плачу местному партнеру годовой единовременный взнос – он является спящим партнером? Если я умру, кто будет иметь право на все мои активы и распределение прибыли в компании?

    Владельцам бизнеса приходится сложнее. Владельцы малого и среднего бизнеса, а также владельцы крупных конгломератов могут потерять гораздо больше, так как ведение бизнеса требует существенной базы активов на местном и международном уровне. Отсутствие надлежащего планирования наследства может привести семью от жизни миллионеров до бедности за считанные дни. Распределение активов и доли прибыли в любом бизнесе после смерти одного из партнеров может быть оговорено в стороннем соглашении, но факт остается фактом, это событие вероятнее всего вызовет вопросы и споры в отношении средств бизнеса. Будучи экспатом, являетесь ли вы наемным работником или владельцем собственного бизнеса, пожалуйста, уделите время, чтобы сосредоточиться на собственном планировании наследства и уберечь семью от финансовой беды, которое может последовать, если с вами что то случится в ОАЭ.

    Вопрос 5. Какой тип завещания должен я написать и должно ли оно быть нотариально заверено и легализовано?

    Закон о Личном Статусе не подразумевает, что завещание, написанное по законам другой страны, положения которого противоречат Шариату, может быть выдано. Ссылка на статью 1 (2) и статью 424. Поэтому нет такого понятия, как завещание ОАЭ. Завещание должно быть составлено экспертами в соответствие с законодательством страны экспата, принимая во внимание вопросы дарения, налогообложения и другие вопросы. Если юрисдикция автора завещания требует нотариального заверения или легализации, то рекомендуется придерживаться этого положения в ОАЭ. 

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    Thu, 25 Sep 2014 12:00:00 GMT
    <![CDATA[FAQs on Succession Law ]]> Where There's A Will, There's A Way: 

      "We should not forget that it will be just as important to our descendants to be prosper- ous in their time as it is to us to be prosperous in our time."                                                                                                                                                                                                                                                                                                                                                            Theodore Roosevelt The Islamic laws of inheritance that have been discussed here can be legitimately accommodated and practically implemented within many existing western legislation systems by way of a valid will. In fact for those Muslims living in the west a will becomes an essential necessity to prevent intestate succession law of the land being applied to their estate after they die. The will should comply with the law of the land so that it can be executed after a person's death without any unnecessary legal problems. It is important to note that if the will is desired to be made (in case of expatriates) according to the local laws of UAE then it should be made in accordance to Sharia law and should not be contradictory to any of the principles of Sharia.    Inheritance Planning is a term used for planning the distribution of your worldly possessions after you leave this life behind.. When a person passes away without leaving a will or dies "intestate" as legally mentioned, the property of the deceased is distributed according to the law of the land on personal affairs. In other words, if you do not have a will, you do not have a documented account regulating the distribution of your estate. An "Estate" applies not just to your real estate, but anything of value like money, bank accounts, cars, furniture, books, bonds, investments, jewellery, family inheritances, etc. Your "Last Will & Testament" is a document that details exactly what you would like to do with your estate in the event of your death. The document can cover all aspects of your life, from physical assets such as property, investments or cash to your last wishes.   FAQs   Q.1. Why make a will? What is the necessity and expected risks if there is no will? A will is always important in order to secure the rights over the property by the owner in favour of his/her kith or kins in the event of death. It determines the subsequent owner of your assets and after you – the specified person will take care or become an owner of your assets in the event of your death. It is impor- tant to write a will and eliminate all risks of future dispute or there may be a possibility that the property may confiscate by the government in case of no will. When an expatriate dies in the United Arab Emirates (UAE), banks are instructed by the courts to freeze all transactions on the accounts of the deceased, including joint accounts. Even assets shared between a husband and wife will be frozen until the inheritance is sorted out.  However Sharia law gives preference to settling the liabilities of the deceased prior to distribu- tion of assets, so unfreezing the account & assets can only be carried out by the order of a Sharia Court if it has an attested will. This process aims to safeguard any payments that need to be made after an expatriate dies, such as outstanding loans and debt payments. It is pertinent to note in the absence of will, UAE being a Muslim country, there is a possibility that the property may not go to the person you wished for. The Sharia Law automatically applies to both Muslim and non-Muslim estate holders when they pass away in the UAE.    Q.2. Will the inheritance and intestacy laws of my home country (in case of expats), prevail over the UAE's local processes, which follow the principles of Sharia?   In case a person of any religion dies intestate , the courts may adhere to Sharia laws in regard to inherit- ance of assets and custody of children. Inheritance matters in the UAE are government principally by two Federal Laws: The Personal Affairs Law of No.28 of 2005  allows non-Muslim expats living in the UAE to opt to use the law of their own countries to distribute their assets are in the UAE. This is irrespec- tive of the fact whether or not the non-Muslim expatriate has a legally recognized Will in his/her home country. In other words, the descendants can apply for probate in the home country upon the demise of a family member, which will allow them to distribute the UAE assets in the manner that the deceased person would have wished.    Q.3. Is U.A.E law applicable only to UAE nationals, or to all Muslims, or even to all expatriates irrespec- tive of nationality and religion?    In the absence of will, UAE being a Muslim country, the Sharia Law automatically applies to both Muslim and non-Muslim estate holders when they pass away in the UAE.     Q.4. I am doing business in a partnership in Dubai. I own most of the business save for the amount which must be owned by a local partner as per the provisions of the applicable law. The distribu- tion of profits is provided for in a side agree- ment. I pay  the local partner an annual/lump sum fee  – is he a sleeping partner?  If I die who will be entitled for all my assets and profit sharing in the company?   Business owners have it worse. SME owners and owners of large conglomerates have much more to lose since running a business requires a  substantial base of assets to be built locally and internationally. The absence of proper inheritance planning can bring a family used to a millionaire's lifestyle to  its knees in a matter of days. The distribution of assets and profit shares in  any business following the demise of a member may well be provided for in side agreement, but the fact remains that the death of a partner is likely to raise questions and potentially dispute with regards to business funds. As an expatriate, whether you are employed or a business owner, please take some time off to focus on your own inheritance planning and save your family from the financial grief that is sure to follow should something happen to you in the UAE   Q.5. What type of Will shall I draft and does it need to be notarised and legalised?   The Personal Status Law does not contemplate that a will citing  foreign law or provisions contrary to Sharia could be issued.  Reference is made to Article 1 (2) and Article 424. Therefore there is no such thing as a UAE will.  A will should be drafted in accordance to the law of country of expatriate by the experts, having regard to the gifting problems, tax and other issues. If the writer's jurisdiction of choice requires the will to be notarized or legalized then it is recommended that the writer upholds this provision in the UAE.         ]]>
    Tue, 02 Sep 2014 12:00:00 GMT
    <![CDATA[Семейные дела – преступления против семьи - ОАЭ]]> Принятие уголовных законов требует первоначального определения следующих пунктов: (1) те социальные и индивидуальные интересы, которые будут защищать эти законы и (2) виды поведения, которые должны быть запрещены

    [i]. При определении, следует ли применить уголовное наказание для обвиняемого, суд должен принять во внимание несколько факторов, включая намерения обвиняемого, наличие преступного умысла, косвенных и прямых доказательств и показаний свидетелей. Исследования существующих уголовных законов в развитых и развивающихся странах привели к предположению, что новые формы преступности находятся в данный момент на подъеме, а суды продолжают применять проверку на преступный умысел. Хотя экономические и должностные преступления, преступления в сфере информационных технологий в настоящее время набирают оборот, одна сфера уголовного права остается без должного внимания – это преступления против семьи.

    В данной статье я хочу обсудить закон, регулирующий подобные преступления в ОАЭ. Это была инициатива законодательства ОАЭ защитить интересы семьи от насилия и преступлений, имея в виду, что данные правонарушения, как правило, имеют длительный эффект как на сами семьи, так и на общество в целом. Данное утверждение основывается на факте, что хотя преступление совершается против жертвы, но в целом, это преступление против общества, чьи законы преступаются. Часть 6 (Статья 327-330) Уголовного Кодекса ОАЭ (Федеральный Закон №3 от 1987 г. с поправками (далее «Закон») охватывает преступления против семьи.

    Статья 327 Закона защищает как интересы семьи, так и законных опекунов ребенка. В ней сказано, что лишением свободы караются:-

    а)похищение ребенка; б) сокрытие ребенка от его/ее родителей или опекунов; в)подмена новорожденного; г)передача ребенка третьим лицам, не являющимся родителями или опекунами. Данная статья имеет в виду присутствие двух физических актов – а) наличие новорожденного б) сокрытие его от законных родителей или опекунов. В случае, если находится свидетель, утверждающий, что ребенок родился мертвым, то он подвергается штрафу 1000 дирхам, тюремному заключению на 2 месяца или обоим наказаниям

    Случаи, когда опекун ребенка отказывается передать его лицам, законно обладающим родительскими правами, рассматриваются в Статье 328 Закона. Подобные действия могут грозить заключением под стражу или штрафом. Строгость наказания может быть смягчена, в случае, если опекун исполнял фидуциарные обязанности по отношению к ребенку, и в этом случае он может воспитывать ребенка, но обязан передать законным родителям или опекунам по решению суда или указанию соответствующего органа.

    Споры по опеке над ребенком в основном рассматриваются судом как личные дела, но вопросы, носящие криминальный оттенок, могут рассматриваться как административные нарушения, но только в случае, если заявитель имеет решение суда требовать опеки над ребенком .

    Похищение несовершеннолетних одним из родителей или бабушкой/дедушкой с или без обманных намерений, насилия будет иметь результатом заключение под стражу или штраф в соответствие со Статьей 329 Закона. Другими словами, если родитель или прародитель похищает ребенка или внука лично или через подставных лиц у законных родителей или лиц, ими являющимися по решению суда или компетентных органов, то он понесет указанное выше наказание. Это означает намерение похитителя прекратить существующие отношения между ребенком и его законным опекуном.

    Статья 330 касается людей, против которых вынесено решение суда о выплате содержания или алиментов, и они не выполняют свои обязательства в течение трех месяцев после получения уведомления. Данная статья выносит наказание ответчику в виде заключения на срок, не превышающий один год, или штраф 1000 дирхам, или и то и другое. В случае, если ответчик погашает свой долг или обеспечивает гарантию, которую принимает заявитель, в этом случае штрафные санкции не накладываются.

    Анализ Статьи 330 показывает, что следующие четыре элемента являются составными частями преступления.

     a.   Заявитель обладает имеющим силу решением суда на получение содержания или алиментов;

    b.   Ответчик отказывается платить в течение трех месяцев после уведомления;

    c.   Заявитель должен зарегистрировать жалобу;  

    d.  Стороны представили свои претензии перед судом и выполнили все процедуры по закону.

    В заключении, нужно заметить, что кроме положений, содержащихся в Статье 327, заявители должны зарегистрировать жалобу в соответствии со Статьей 10 Уголовно-Процессуального Кодекса ( 35 от 1992г.), которая устанавливает, что уголовное дело должно быть основано на письменной или устной жалобе жертвы или ее/его законного представителя и по истечению трех месяцев происходит а) отказ в возвращении ребенка его законным родителям/опекунам; б) отказ в выплате содержания, алиментов, оплате за жилье жене или иному лицу по решению суда.

     

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    Mon, 26 May 2014 12:00:00 GMT