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Divorce in the UAE or the UK: Running Out of Time?28th May 2020 Family Law
The direct school year in Dubai came to an early end in March. E–learning has replaced the classroom and many expatriate parents, deciding that the summer started then, have returned to their country of origin to sit out the pandemic. On the basis that no decision has been made about the opening of schools in the UAE for the academic year 2020-2021, remote education may continue into the 2021.
It is quite likely, as happens most summers, that with a longer term change of scenery comes a more permanent change of heart.
What is different this year will be the amount of time that parents and spouses are separate and not just because of the impact that it will have on their relationships.
The ability for an expatriate couple to start a divorce in England and Wales is often fairly simple. Despite the fact that they live in the UAE, one or both of them are likely to have retained their “domicile” (nationality) in their country of origin (England or Wales).
If both have this right then a divorce in England will be “full fat” with both husband and wife being entitled to the full range of financial claims (income and capital). Awards in England and Wales are significantly more advantageous to the weaker economic party to a marriage, often the wife, than in most other countries.
Dubai being the melting pot that it is, many couples come from different parts of the world. Although a divorce is still possible in England and Wales if only one spouse has English or Welsh domicile, it comes with a significant restriction; European law excludes a maintenance/alimony claim for the spouse.
But that is not the end of the story. A further provision of the law in England and Wales allows a divorce to be started in either country based on periods of habitual residence (centre of interests) and actual residence; a year if neither the husband nor the wife has European domicile and six months if they do.
Very significant amounts of money can turn on the arguments between divorcing couples about whether or not they fit into one of these categories and no one is helped by a degree of disagreement in the courts of England and Wales through a series of competing decisions ending up (possibly) with Mr and Mrs Pierburg in 2019.
Very briefly the issue is whether living in a country is the same as having your centre of interests there.
Why is this important now?
As I have explained, the lockdown of the last few months has displaced and separated many couples. The clock on these complicated issues of habitual residence and actual residence is very much ticking and for many, six months will have elapsed before the usual September return.
However, time served is now no longer likely to be enough as a real practical and emotional attachment to England and Wales will have to be demonstrated for a divorce to fly in either country now. Mrs Pierburg ran into difficulties because she kept her dentist, florist and hairdresser in Germany.
E-learning with a UAE school, is a significant connection but the real arguments are going to be about whether this extraordinary period, where geographical movement and travel has been either impossible or discouraged can “count” when trying to establish the right to divorce in England and Wales based on “time served”.
Michael Rowlands is a partner at JMW, London and a Fellow of the International Academy of Family Lawyers. A leading expert on the region, Michael travels frequently to the Gulf .