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

The appointment of an expert in UAE (United Arab Emirates) can be challenged on the basis that the expert failed to carry out his duties in an impartial manner or without prejudice to either one of the parties. The expert appointed has to at all times exercise impartiality towards the parties in a dispute and has to act independently. An expert is defined as any legal person who practices the profession of expertise and is registered on the list recorded in the experts' register in the Ministry of Justice of UAE under the Federal Law Number 7/2012 on the Regulation of Expertise before the Judicial Authorities (the "Law"). The expert appointed has to at all times exercise impartiality towards the parties in a dispute and has to act independently. There are certain conditions that the expert has to abide by at all times, and any failure of the expert in performing these duties shall render the expert's decision to be challenged. These conditions that the expert has to conform to have been mandated under Article 11 of the Law and have been outlined below:  

  • The expert is to practice his profession with utmost honesty, sincerity and accuracy. It is to be practiced in a manner that is prudent whilst preserving its dignity and consideration. It is also imperative for an expert to take into account the principles and traditions of the profession in accordance with the Charter which lays down the set of rules and regulations governing the work of the expert;
  • The expert shall be banked upon to handle the task entrusted to him personally and independently;
  • The expert shall not indulge in any disclosure of information pertaining to his professional expertise work or anything that he may have accessed by virtue of his work of expertise;
  • Neither the expert nor any one of his relatives (up to the fourth degree of kinship) are to have any personal interest either directly or indirectly in any business related to the subject of the case or the subject of his expertise;
  • The employer of the expert shall not be a party to the dispute being considered by the expert;
  • The expert should not accept any work of expertise in a dispute for which he has already been asked for consultancy or where he has been briefed on the documents related to the dispute by any party to the conflict;
  • He has to update and develop his skills in the field of specialization in which he is licensed to practice the expertise;
  • He has to associate his name, registration number and the name of the office through which he works in all publications, correspondences, certificates and reports signed by him;
  • Maintain a special register where data of expertise work performed by him shall be recorded;
  • Maintain a true copy of the reports prepared by him till the adjudication of a conclusive judgment regarding the case subjected to his work of expertise and
  • The expert has to notify the Ministry of Justice of his address and any modification that might occur within a month of the respective modification. Any amendment or modification to the license data will also have to be notified to the Ministry within a month of the said notification.
  • In order to challenge the appointment of an expert, a committee shall be set up by a decision of the Minister of the Ministry of Justice, known as the "Experts Affairs Committee" and this committee shall be competent in reviewing complaints and reports related to the experts. The committee shall be equipped to take any necessary action in accordance with the procedure as specified by the Law and also in accordance with implementing regulations and decisions of the committee. The name of the expert can be struck off from the list upon a decision of the committee in case he loses a requirement of his registration, if he is convicted of a felony or misdemeanor inclusive of a breach of trust/honor and if he is incompetent or unable to perform his work any longer due of his health condition based on the report of the competent medical committee (Article 23 of the Law). The Public Prosecution shall notify the committee of the penal cases filed against the experts and of the judgments convicting them and the committee shall in furtherance of this notify the expert and the party for which he works of the complaint filed against him. The expert shall have a time period of 15 days to respond from the date of receiving such notification. Accordingly, the complaint, along with the expert's response, shall be submitted to the committee upon which a decision can be rendered to dismiss it or refer it further to the investigation.

    Federal Law number 10/1992 on Evidence in Civil and Commercial Transactions (Evidence Law) authorizes the court for the appointment of one or more experts where it deems fit in matters related to a dispute. Whenever deemed to be necessary, the court is authorized to deputize one or more experts from amongst the State employees or from the experts registered on the list to give their advice in matters related to the dispute concerned (Article 69 of the Evidence Law). If either of the parties to the legal dispute is not content with the appointment of the expert or the legal action, then they may lodge a complaint against the estimate within a prescribed time period of 8 days of it being announced. Such a complaint shall be carried forward with a deposition of a written report with the court's record clerk which shall result in the order of estimation not being carried out. However, the said complaint shall be ruled on by another judge or another circuit upon hearing the statements of complainants and the ruling rendered in such matter shall be final and irrevocable (Article 91 of the Evidence Law).

    In case the parties are not content with the appointment of an expert then the parties to a dispute shall have the right to apply for dismissal if such an expert based on the conditions mandated in Article 77 of the Evidence Law. Such conditions include the scenario where the parties may apply for removal of the expert if it appears that he is incapable of performing his assignment without bias. If it is shown that the expert is a relative or in-law to either of the parties in the legal action up to the fourth degree, then the expert's appointment may be challenged. He should also not be a trustee or guardian, be working for any of the litigants or be appointed as an attorney for either party in his personal work. If the expert or his wife is involved in an existing dispute with any of the parties in the lawsuit, unless such dispute has arisen after the appointment of the expert for the purpose of having him dismissed, then the expert's appointment holds ground for being contested. The appeal for dismissal of the expert shall be made by appearing before the court within a time period of one week of the date of his appointment if the order has been issued in the presence of the party who applies for such dismissal. If such an order has been issued in his absence, then the appeal for dismissal shall be submitted within the next week following the service of the order upon him. The right to appeal for dismissal shall not elapse on the basis of reasons arising after such time has been given or if the litigant has produced a proof that he has no knowledge of such reasons except after the lapse of the time given. The reports of the expert can be challenged by the court where the court decides not to follow such report provided that the judge specifically provides reasons for such decision.

     

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    Wed, 05 Aug 2020 15:42:00 GMT
    <![CDATA[Victim-Offender Mediation]]> Victim-Offender Mediation: An alternative to the Criminal Justice System?

    Abstract: Victims feel progressively baffled and estranged by our current frameworks for justice. Despite the fact that the criminal justice framework exists accurately, victims abused by criminal conduct have no legitimate remaining during the time spent getting justice. Traditionally, mediation is seldom used as a method of dispute resolution. Does restorative justice bring justice to the victim for the crimes of the criminal offender? The idea of mediation is to create an opportunity for both sides to voice themselves; to give the victim the opportunity to articulate the effect the crime has had on them while simultaneously allowing the offender to show repentance for his offence, owning up to his actions that have profoundly affected the victim while atoning for it.

    1. Introduction

    Therapeutic victim-offender mediation is a relatively niche area within the traditional criminal justice process. This method of mediation has a high potential for rehabilitation of the criminal offender giving him the opportunity to redress whilst righting his wrongs under the alternate dispute resolution philosophy. Ideally, any judiciary's opinion about restorative justice depends on their belief of how much potential a criminal offender to rehabilitate himself, and whether the level of seriousness of his crime even gives him access to this method of mediation. In simple words, if the court believes there is very little scope for the rehabilitation of the criminal offender, they would not allow a victim-offender mediation program.

    It is debatable whether the justice system concentrates on the wounded or even the wrongdoers, however, the justice system is concerned about reprisal and finding suitable types of discipline and punishments. Victim-offender mediation usually handles crimes of not the most severe nature but ones like minor property related matters, juvenile crimes, etc.

    It is again debatable whether an adequate opportunity is provided to either the victim or the criminal offender in the justice process. If provided a measured environment with enough supervision, having the criminal offender and victim face each other and express themselves may give positive outcomes in the long run. The victim is able to completely realise the gravity of the situation and how it has affected them, whilst voicing it directly to the criminal offender, who is made to realise the negative and deep impact it has on the life of a person, in the hope that rehabilitation is an option, and that restorative justice could be an essential tool to humanizing the criminal justice process. It may not match up to the turmoil that the victim has faced, but it may provide a level to satisfaction that the victim was given an opportunity to face the offender and say things to relieve them of the trauma mildly, if not substantially, instead of having to hold their peace about not being given the chance to do the same.

    Victim-offender mediation may prove to be an excellent alternative to the current criminal justice procedure around the world. It is pertinent to note that it is voluntary, which means if only the victim wants to pursue this method of alternative dispute resolution, should they be allowed this option. Alternately, there is always the traditional criminal proceeding mechanism available.

    2. What Is Restorative Justice Practice?

    Tony Marshall of the Restorative Justice Consortium (United Kingdom) proposed a valuable working meaning of Restorative Justice:

    "Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future."

     While Tony Marshall's definition feels incomplete, it provides a gist of the concept behind restorative justice, which is two-fold:

  • Victims and their wrongdoers in the case are in an up-close and personal space, and
  • The aim of this congregation is to arrive at a conclusion.
  • According to Marshall, each subdivision of mediation developed freely and have impacted and complemented one another. The branches are mainly: community mediation, victim-offender mediation and victim-offender reconciliation programs.

    Therapeutic restorative justice depends on qualities that stress the significance of giving open doors for the increasingly dynamic association through dialogues in the procedures of offering backing and help to the aggrieved party. It is important that the victim is actively involved in the criminal justice procedure.

    The focus of restorative justice is to repair the harm. It focuses on giving the offender the chance and opportunity to hold himself accountable for his actions, to realise the gravity of his actions, and if permissible, be granted a way to right his wrongs. Restorative justice promotes addressing of all the issues in person and to mutually reach an understanding of what the next step should be towards the justice of the victim.

    Conferencing, which is branch of victim-offender mediation, refers to the procedure where the victim, the offender and their supports (moral supporters or otherwise) along with certain community members work towards reparation in the presence of a neutral and unbiased third party.

    3. How Does Victim-Offender Mediation Work?

    An unbiased third party intercedes an exchange among victim and the guilty party who:

    • Talk about how the wrongdoing influenced them;
    • Express their side of the story;
    • build up a commonly acceptable composed compensation assertion;
    • build up a subsequent arrangement, in this way empowering the aggrieved and the offender to conclude the remedial procedure.

    4.  Need For Restorative Program In The Criminal Justice

    In the traditional retributive justice system, crime is demarcated by the violations of the prevalent criminal legislation of a country. Restorative justice, on the other hand, takes into the account that the crime against the victim is defined by the harm caused. Restorative justice humanises the criminal justice process.

    In a victim-offender mediation, the victim and the offender directly involved in the case are the primary parties. They have direct involvement at each stage of the mediation process which evolves with the changing needs of the parties.

    While retributive justice focuses on the offender being punished for the crime committed, restorative justice, on the other hand, demands that if the case allows, the offender be allowed to make his wrongs right. It demands that the victim direct in deciding how he wants justice to be served, and what action needs to be taken. It is essential that the victim is satisfied at the end of any proceeding or path he chooses. When victims have the open door for direct association with the offender, such cooperation can be transformative- from enduring in silence to shared mending, from detachment to network support, from frailty to strengthening, from melancholy to reengagement.

    Restorative justice additionally takes into account 'society' as an interested party in criminal cases. The crime committed by the offender not only affects the victim directly or abuses the legislative system of a country, but also affects the general public at large.

    5. Advantages Of Victim-Offender Mediation

    5.1 The Victim

    It is essential that at apposite stages of a case, inputs of the victim should be inculcated while arriving at an outcome suitable. The fact that the restorative justice system adds the human factor while delivering justice, is the main reason that it benefits the victim. This form of mediation and justice process gives a chance to the victim to recuperate from the deep, traumatising effects of the crime, mentally and emotionally, by allowing them to sit face-to-face with their offenders and talking to them at intervals convenient to them. This has a liberating advantage for the victim since it relieves them of the questions about the crime that daunts them, as they can directly get answers from the offender.

    An important benefit of this system to justice is that victim-offender mediation allows the victim, who is directly affected by the crime, to devise a personal restitution agreement. It is important to note that the intention is not to let the victim individually decide what the punishment for the offender should be, but to allow the victim to have a say in an outcome favourable to him, or to his satisfaction. The idea of justice differs from person to person and it is important in a case where the victim is affected, that he has a say in what would bring him justice.

    The involvement of victims in criminal cases is unique to that followed traditionally by criminal courts. The courts ordinarily are worried about reformatory compensation fundamentally through fines or detainment; victim-offender mediation uses individual restitution that is fittingly custom to the victim and the offender. Mediations are tailored for each case.

    In an article by Howard Zehr titled 'Justice paradigm shift? Values and visions in the reform process', six questions were stated that goes through the mind of the victim which he/she seeks answers to. The questions are as follows:

  • "What happened?
  • Why did it happen to me?
  • Why did I act as I did at the time?
  • Why have I acted as I have since that time?
  • What if it happens again?
  • What does this mean for me and for my outlook, my faith, my vision of the world, my future?"
  • The benefit of victim-offender mediation for the victim is that the victim can personally get the answers to these questions directly from their criminal offender. Once the victim has the responses to these questions when they are given an opportunity to reflect on them, they also have the chance to be heard, and more importantly, it allows them to directly say it to the offender.

    In line with Zehr's opinion on what victims demand, Heather Strang in an article titled 'Repair or Revenge: Victims and Restorative Justice' also concluded in her own way what the victim needed; in her opinion, she felt the following was needed by victim in a criminal justice system:

  • Involvement in the process as well as the end result.
  • To be dealt with consciously and reasonably.
  • An expression of remorse for emotional rebuilding.
  • Being allowed to take part in their case.
  • Monetary compensation.
  • A semi-formal procedure where they are valued.
  •  

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    Sun, 22 Dec 2019 11:36:00 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.

     

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    Mon, 16 Dec 2019 09:21:00 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

     

    ]]>
    Thu, 10 May 2018 15:23:21 GMT
    <![CDATA[Defamation V.1]]> ARE YOU OFFENDED OR IS IT FREEDOM OF SPEECH?

    "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties."
    John Milton, Areopagitica

    We are always encouraged to voice our thoughts and to use the liberty of freedom of speech. However, can we actually say everything that we want to or the laws give us a boundary that if crossed can have consequences? How much can we communicate without restrictions? No matter how welcome we are in this world to express our feelings, the law is above all that confines us to defame another person.

    Defamation is the act of making and spreading false statements about a person that can harm his/her reputation. Defamation is a complex law as proving that the person's reputation is damaged is difficult because reputation is intangible. There are two kinds of defamation known to the law; Slander and Libel. Defamation was distributed into two categories before the advent of modern media. If a defamatory statement is spread in writing and published it is called libel. If the defamatory statement is spoken, it is called slander. What if the defamatory statement is made spontaneously on live media? Can a person sue another for defamation if the reputation is damaged? This article will analyze the traditional concepts of defamation in comparison to spontaneous defamation and its legal capacity.

    In almost all countries, defamation law has always been complex and intricate. On one hand, a person is given the freedom of speech and to about their experience in a truthful manner. On the other hand, a person should refrain from making any false statements that could damage someone's character or reputation. That's where defamation law comes into play, where it attempts to balance the personal right to protect one's reputation simultaneously with the public right to freedom of speech. Defamation law gives the right to a person to protect his/her reputation and sue those who say or publish malicious and false comments.

    Liable for Libel?

    Libel is the publication of defamatory accusations in a permanent form and slander is the publication of defamatory words in a temporary or momentary form (usually oral)[i]. There are three elements which a claimant must prove to sue the party for defamation. The matter of complaint must: be defamatory; referred to the claimant; and have been published to a third party. A libel is usually thought to occur in writing or print. Indeed, a defamatory statement contained in a book, magazine, newspaper, letter or poster can quite easily be categorized as a libel. However, it is wrong to assume that libel is limited in this way. Defamation occurring in signs, artworks, cartoons, tweets, photographs and even the display of a wax figure in Madame Tussauds could constitute a libel if proven as in one of the primary cases of Libel, Monson v Tussauds Ltd (1894)[ii], A major tourist attraction of wax statues was subject to defamation after a waxwork John Monson holding a gun was displayed close to the 'Chamber of Horrors' in the museum. Monson was subjected to a murder trial but was set free with the judgment of 'not proven'. It was established that a wax statue was capable of being libel by suggesting Monson be guilty of murder.  There are also many other forms of publication by electronic or digital means such as and Music, Films, TV and etc.

    What can be qualified as Slander?

    Slander is the statements, often made in malice or anger, which are untrue. Few statements that can qualify as slander are as following; Claiming a person is gay, lesbian, or bisexual, when it is untrue, in an attempt to harm his or her reputation, telling co-workers a made-up, or unproven story about a certain person stealing, claiming that a certain person has a sexually transmitted disease etc. Any statement made in public that can harm a person's reputation is considered as slander. Because slander involves spoken verbal abuse, proving slander can be a challenge. The false and malicious statements should be communicated intentionally, or in a negligent manner, to harm the other person's reputation and directed to the person being defamed[iii]. A famous Hollywood defamation lawsuit, Steve Wynn Vs. Joe Francis[iv].  Where Steve WynnaccusedJoe Francis of slander for saying that Wynn wanted to kill him and bury him in the desert. After Francis publicly accused Wynn of deceptive practices at his casinos, Wynn sued him for defamation. The judge ruled in favor of Wynn in February and ordered Francis to pay USD 7.5 million.

    Following are the few vital defenses to defamation: truth, honest comment, absolute privilege, and consent[v]The truth defense is an action for libel for the defendant to prove that the words complained of are true in substance and defamation will be void as defamation is only on the basis of false statements. Honest comment is a defense to a claim in defamation. It has been described as 'one of the fundamental rights of free speech and writing.' The underlying principle for the defense is that a person should be allowed to express his views freely on a matter of public interest. Another defense to defamation is the Absolute privilege, it is limited in scope but were established by a defendant to a claim in defamation, confers upon that defendant immunity from suit or immunity from liability, even in respect of a malicious and untrue publication which causes real damage. The Absolute privilege protects a person who makes defamatory comments based on his position, or on his relationship with the defamed party. Lastly, If the defendant can prove that the plaintiff consented to the publication of the defamatory statement to others, he has no basis for a defamation lawsuit.

    Above discussed are the defamation which is known to the law and has several case laws to support it. In an article name 'Defamation Live'; The Confusing Legal Landscape of Republication in Live Broadcasting and a Call for a 'Breaking News Doctrine'[vi], the authors discuss the live and spontaneous broadcast of defamation and describe it as the murky area of law. The author narrated a scenario where 'imagine that you are a broadcast journalist for a national television in a current situation of a building just burnt because of the bombing. Post reaching the scene with your cameraman, you started with your first question 'Who do you think committed this horrible act?' from a bystander Mr. X, who anticipated the will name a local man Mr. Y as the bomber because you overheard Mr. X, whom you have never met before but have no reason to trust, telling others in the crowd that he knows Mr. Y did it. Mr. X names Mr. Y, a person of no particular notoriety or power, live on the air. It turns out that Mr. Y had nothing to do with the bombing. Mr. Y sues you, your station, and Mr. X for defamation. This article analyzes if courts lawmakers create a 'breaking news doctrine' to protect broadcast journalists from liability in such spontaneous or live defamation cases. Defamation law holds everyone liable who republishes a defamatory statement. So, if a statement goes out live on the broadcaster's channel, then the broadcaster is considered a re-publisher and held liable.

    There are defenses that can be used to prevent the republication liability. Fair report privilege where the law gives unique privilege to publish fair and accurate reports of certain defined judicial and legislative proceedings. However, this privilege won't be justified with the above-mentioned scenario as it is not reporting judicial or legislative proceedings. Another defense is the wire service defense, it was originally developed for newspaper who served as channels for national wire service reports. It acknowledges the significant of publication before the news becomes old. It was ruled in the case of Layne c Tribune, Co. This defense would not apply to this scenario because, Doctrine only applies when the source of the information is a reputable news agency such as the associated press or a broadcast television network, not a man on the street bystander like Mr. X.The broadcast journalist in the hypothetical scenario is involved in the broadcast, he chooses who to interview and the questions to ask. The requirement of 'absolute non-involvement with the underlying broadcast is not satisfied. Another defense is the Neutral reportage privilege which is used to protect journalists when they make certain false statements about public figures. It was developed in the 1970s to protect unbiased reports of newsworthy defamatory statements. However, this would not apply to this situation because it is only applied to cases involving public figures. The defamed individual in this situation is a person of no particular notoriety or power. The privilege would not apply because the source of the defamatory statement must be a responsible person or organization. Also, Section 230of the Federal Communications Decency Act provides immunity from defamation liability for those who convey content supplied by third parties, the privilege is limited in application to an interactive computer service. Thus, it would not apply to the broadcast journalist described in this situation.

    You are Live On-Air

    There are several case laws regarding the live, on-air defamation. Adams v Frontier Broadcasting Co and New York Time v Sullivan are among the leading case laws. In the United States, various states have different approaches to the state law known as 'due care' statutes[vii]. South Dakota law provides that the complaining party must prove that the broadcaster failed to exercise due care to prevent the publication of such statement in the broadcast. Ohio removes liability for third-party statements and broadcasters 'if the owner licensee, or operator proves that the owner, licensee or operator exercised reasonable care to prevent the publication or utterance of the statement in such broadcast time. Texas's statute allows libel defendants to put into evidence all facts and circumstances under which the libelous publication was made in order to help determine the extent and source of actual damages and to mitigate exemplary damages. Most states need negligence for all parties to recover damages against public defendants, meaning that the due care statutes in many cases simply codify what the law would be in any event, regardless of the way by which the defamation was transferred. A defendant who is confronted by an emergency is not expected to exercise the same amount of care as is a defendant not facing exigent circumstances. Live Defamation scenarios are of a great risk for broadcasters, especially when the targets of spontaneous defamatory remarks are private individuals.

    Defamation in UAE

    Unlike other countries like the US and the UK where defamation is approached in a civil lawsuit, In the UAE defamation is a criminal offense. With the growing population of expatriates, the number of defamation cases has increased significantly. 

    There are two major offenses under defamation outlined in Articles 372 and 373 of UAE Federal Law No. 3 of 1987 (as amended) ("the Penal Code").  Article 372 handles a publicity which exposes the victim to public hatred or contempt and Article 373 set out the situation where the offender makes a false accusation that dishonors or discredits the victim in the public eye. For example, if the defamation includes publication of defamatory remarks in any newspaper or any other form of public media, it will be considered as the situation created intentionally and the offender will be punished by imprisonment of two years and a fine (Article 372, UAE Penal Code). Whereas, if a slander is made and spread over the telephonic conversation or in front of the victim which is witnessed by a third party. The punishment for the offender will be detention for a period not exceeding six months, or a fine, not more than AED 5,000 (UAE Dirham five thousand), shall apply (Article 374, UAE Penal Code). If any defamatory statement is published, it must be filed within three months from the date of its publication. Once the criminal complaint is filed and if police determine that there is an indication of defamation, it is referred to the Public Prosecutor. It is a crime in the UAE, to insult any religion using any means which includes the social media and is punishable by up to seven years imprisonment.

    The UAE courts are not obliged to provide injunctive relief which will prevent future publications of the defamatory".  If the offender is proved guilty, individuals can be punished for up to two (2) years in prison or a fine of up to AED 20,000 (UAE Dirham twenty thousand). The UAE relies on criminal courts to legalize written and spoken speech. In comparison, US and UK legal systems rely upon civil lawsuits to control defamatory statement.

    Technology and Defamation

    With the expansion of social media and the substantial source of the Internet, the opportunity for publishing defamatory statements has grown massively. With mediums such as Facebook and Twitter, people can instantly publish comments which will reach the public at large. For this reason, the defamations laws will be applicable to online defamatory statements, where it is visible to everyone. Defamation in social media and on the internet are generally easy to track as there is a proof of it being published.

    In conclusion, defamation is a murky subject as in today's world where freedom of speech is appreciated and welcomed on the other hand people do have very strong opinions about other people that they post on different channels.  It is a difficult area of law to tackle in today's world as private figures are becoming public. The live streaming is not only available to news channels now but to every individual who has access to social media. It will be more defamation cases than the legal system could handle if every malicious statement made were an area of defamation.

     

    [i]Bainton, Hicks Beach, A. (2016). Defamation: Libel. Westlaw.

    [ii]Lawteacher.net. (2017). Monson v Tussauds Ltd. [online] Available at: https://www.lawteacher.net/cases/monson-v-tussauds.php

    [iii]Bainton, Hicks Beach, A. (2016). Defamation: Slander. Westlaw.

    [iv]Gardner, E. (2012). Steve Wynn Vs. Joe Francis: Anatomy of a $40 Million Smackdown. [online] The Hollywood Reporter. Available at: https://www.hollywoodreporter.com/thr-esq/joe-francis-steve-wynn-girls-gone-wild-40-million-lawsuit-369714.

    [v]Bainton, Hicks Beach, Crossley, A. (2017). Defamation Defences. Westlaw.

    [vi]D. Bunker, M. and Calvert, C. (2017). "Defamation Live": The Confusing Legal Landscape of Republication in Live Broadcasting and a Call for a

     

    "Breaking News Doctrine." Hein, (39 Colum. J.L. & Arts 497 2015-2016

     

    [vii] Nytimes.com. (2014). Text of the Supreme Court's Opinion in Libel Case Against The New York Times. [online] Available at: http://www.nytimes.com/1964/03/10/text-of-the-supreme-courts-opinion-in-libel-case-against-the-new-york-times.html.

     

     

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    Mon, 16 Apr 2018 18:45:10 GMT
    <![CDATA[UAE Criminal Law and Contradictory Statements]]> Contradictory Statements

    In a bundle of truths, a lie will always be found within.

    Pinocchio told lies, and his nose grew. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. The challenge is for the jury and prosecution to find out the truth, the whole truth and nothing but the truth. The prospect of success in a court case is dependent upon the judge and jury believing the story put forward by the prosecution, beyond a reasonable doubt. To reach this decision, the jury must not doubt that the accused is guilty or not guilty. A combination of the defendant's explanation of events along with any witnesses available to testify is then put forward in front of the court for them to reach a conclusive decision as to whether the defendant is accountable.

    Legality of Contradictory Statements

    In legal terms, a contradictory statement is an incompatibility and clear opposition to two ideas which are the subject of the same proposition. Whether it be the defendant on the stand accused of a crime, providing insufficient information to what has been previously provided or if one or more witnesses reenact the chain of events that occurred, but do not portray a mirrored story, contradictory statements lead to much confusion for the judge and jury.  When a statement made has been contradicted by another in court, the jury is led to believe that all accounts made from that point onwards are false. Any evidence that would seem credible is now unreliable. A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account.

    It is a public perception that perjury is a hard crime to prove. In most US jurisdictions, the two-witness rule is used to discover whether the accused has committed such a crime. Under the two-witness rule, it must be proven that the defendant's statements made would be contradicted by at least two witnesses. As above mentioned, the difficulty of proving a defendant has committed perjury amounts from the fact that at common law the accused cannot be convicted of perjury based only on a contradictory statement made unless it is then established by the prosecution that either of the statements made which contradict one another is false. With evidence and witness statements, once the above is proven, a successful prosecution of perjury can be brought against a person.

    The laws in place among global jurisdictions highlight the importance of witnesses, and the accused told the truth under oath in court. It is understandable for a witness that attending court is a daunting experience. The directions given by the court is to make sure that the process for a witness is as comfortable and safe as possible.

    Within court proceedings, it has not been unknown for witnesses to contradict what was originally recorded in their witness statements. As time has elapsed since the statement was written, witnesses have had the opportunity to recollect on the events they saw and question whether what they noted shown the accurate picture. The process of a witness providing the court with their account of the facts first starts with the witness documenting and signing the statement of truth to confirm what they have recorded are to their knowledge the true, accurate events that took place. If a witness is called to the stand and contradicts a statement previously made by themselves or another witness with a similar account, the testimony given is weak, leading the jury to discredit all that they have heard up to this point which may have damaging effects for the defense or prosecution.

    A contradictory statement can result in the accused being convicted of a crime they may not have committed. In the case of E v Joyce, several witnesses had identified the defendant through detailed statements and confirmed they had the correct identity of the person they saw. At the trial, the witnesses stated that they were now not certain whether their identification was correct. The trial judge admitted the earlier statements as evidence of the first identification being the accused. With this, the jury convicted the accused.

    Witness Testimony

    The strength of a witness's statement is paramount to win the case. A contradictory comment, regardless of the effect it may have on proving the defendant's guilt, will be noted.  The single purpose of cross-examination is not only to get the truth from the accused or witnesses but to decipher statements that align, against those that appear suspicious and do not match up with other evidence available to that case.  It cannot be concluded that in every instance of a contradictory statement that the witnesses or the accused is lying. Taking into consideration the complexity of each case, certain questions put forward by the defense and prosecution during cross-examination will be heard or construed differently by the person on the stand under oath.

    A witness is at a greater disadvantage to the lawyer as they approach the stand. The witnesses are not aware of documents they cross-examiner may have which directly impacts on the statement they presented. There is no preparation given to a witness. A statement is made and signed and read out again by the witness in front of the court. It is necessary that witnesses are given recognition for their ability to show their account, regardless of whether they contradict a certain event happening. In these situations, however, the opposing side take it upon themselves to highlight any contradictory statement made regardless of the sincerity behind it, to induce the jury to see that a witness is lying, therefore, their story so far is imperfect.

    The defendant enters the court followed by the misconception by the jury that they are guilty of the crime before they are given the opportunity to defend themselves. Straight contradiction implies to the court that when the accused speaks falsely about a certain point, they are speaking falsely about all points they have raised. Implications arise here as it could be perceived by the jury that the accused is self-incriminating themselves by contradicting earlier statements. Irrespective of whether the story matches other evidence presented and highlights to the jury that the defendant is innocent, a contradictory statement prompts negative reviews from the jury about that person's ability to tell the truth, the whole truth and nothing but the truth.

    Self-contradiction can be brought out by the skills used in cross-examination or from the accused's statements previously made. Statements and evidence used against the defendant create panic and can result in them then self-contradicting points they have made to explain or justify why whatever has been presented does match. As abovementioned throughout the article, contradictory statements signify to the jury who is possibly telling the truth and who is lying allowing them to reach a valid conclusion based on what they have heard on whether the accused is guilty or not.

    It seems that a contradictory statement can easily be made in court and will damage the credibility of the information put forward by the accused or the witnesses. Unfortunately, the jury does not take these statements lightly which may result in serious impacts to the case. As abovementioned in the legal definition of a contradictory statement, the information provided by the defendant or witnesses must be inconsistent with previous. The wording of inconsistent rather the use of different provides uncertainty as a mere mistake made of such an exact time something happened or the exact coloring of clothing the defendant was wearing may only be a slightly variable to what evidence or other statements display.

    ]]>
    Thu, 07 Dec 2017 06:37:00 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[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[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