: May 21, 2016 |
: Dubai laws
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Hassan Mohsen Elhais
After qualifying as a lawyer in his native Egypt within the fields of Criminal and Public Law, Mr. Mohsen Elhais has been practicing in Dubai for the past seven years.
Working exclusively with Al Rowaad Advocates, Hassan is an effective leader of the company, the spokesperson and driving force. Hassan has a strong ethical stance with regards to the place of the law firm and its work on behalf of the client, from clarity on the legal process through to the fee system.
Specialising in the drafting of all statement of claim, memos and consultation with regards to all kind of litigations, Hassan has worked his way through the ranks of Al Rowaad Advocates from joining as Legal Advisor to his current role as Managing Partner.
The UAE is not a signatory to REMO. Nevertheless, foreign financial orders can be enforced within the UAE however, there can be difficulties as set out below. Enforcement of a foreign order initially requires the commencement of an ‘attestation case,’ this is loosely an application for a mirror order. Under s.235 of the Civil Code, foreign orders may be enforced in the UAE by applying the laws of the foreign country within the local courts. The provisions are as follows:
1. The execution of the decisions and orders delivered in a foreign country may be authorized in the state of the UAE under the same conditions decided in the laws of that country.
2. The execution order shall be requested before the Court Of First Instance in which area the execution is required, and it shall not be possible to order the execution before the verification of the following:
- That the state’s courts are not authorized to examine the litigation in which the decision or the order has been delivered and that the foreign courts which have delivered it are authorized to do so.
- That the decision/ order has been delivered from an authorized court according to the law of the country in which it has been issued.
- That the litigant parties in the action in which the foreign decision has been delivered, have been assigned to attend and have been properly represented
- That the decision/ order has acquired the power of the decided order according to the law of the court which delivered it.
- That it does not conflict with a decision or an order delivered previously from a court in the state, nor does it include what breaches the morals or the public order therein
In summary of the above, foreign financial orders can be enforced in the Dubai courts if:
1. The Dubai courts did not have jurisdiction to deal with the original litigation
2. The English order was produced by a competent court using the laws of England and Wales
3. Both parties were given notice of the hearing and attended or were represented
4. That the court had the jurisdiction to make the orders that it did
5. The order does not conflict with orders previously made by the Dubai courts, and the orders do not breach public order or morals.
Once the attestation case has been carried out, the resulting mirror order could be enforced through an execution case. The UAE courts have very wide powers of enforcement for example:
1. Attachment of earnings: the judge may make an order that the employer disclose details of the husband’s salary and bonuses, then make an order that the maintenance owed is paid from the salary.
2. Enquiry of banks, or traffic and land departments: the judge can order an enquiry to determine whether, for example, a respondent has funds in their bank account to pay a lump sum, or a car or property that could be sold to meet an outstanding debt.
3. Freezing bank accounts: an order may be made to freeze a bank account if the judge believes that the respondent is likely to dissipate assets to avoid meeting their obligations under the original order.
4. Seizing goods: to ensure the repayment of a debt, a judge may order the seizure of property or other goods. The executive judge may transfer the matter to the executive judge of another court, in whose jurisdiction the property lies (for example in another Emirate).
5. Imprisonment: this is likely if the respondent shows a willful refusal to pay despite being able to afford to, or if the judge fears that they will flee the country. Imprisonment can only be for a period of less than three years. Imprisonment does not negate the need for the respondent to meet the terms of the original order.
6. Travel ban: the judge can make an order preventing the respondent from leaving the country.
Once a mirror order has been obtained, it can be retained for future enforcement as required and used on more than one occasion.
If during the process of finalizing a financial agreement outside the UAE, it is anticipated that it may be necessary for the agreement/ order to be enforced within the UAE also, it is advisable to take precautionary measures. Either the parties could cooperate to obtain a mirror order in the UAE through an attestation case, or a cheaper option is for an agreement to be drafted in similar terms and put by both parties before the Reconciliation Committee of the UAE, resulting in an enforceable judicially approved document.
Financial relief after foreign divorce proceedings
What powers are available to make orders following a foreign divorce?
There are no specific statutory provisions dealing with financial provision after a foreign divorce. It would be for one party to rely on an order made by a foreign court (e.g. through an attestation then execution case), and the other party to put why it should not be enforced.
Author: Experienced lawyer Hassan Elhais, along with his team of prominent lawyers across the UAE, has made a name for himself as a renowned specialist in the fields of civil law, construction law, banking law, criminal law, family law, inheritance law and arbitration.