Divorce Image Credit: Creative Commons

Filing for divorce before Sharia court

Question: What are the conditions under which a Muslim woman has the right to file for divorce before the Sharia court and how can she prove the harm caused to her by her husband? Can a case be filed directly before the competent court? Please advise.

Answer: I would like to clarify the questioner that Federal Law No (28) of 2005, on Personal Status, states:

1. Divorce by agreement (Khul’): This is a contract between the spouses whereby they agree to terminate the contract of marriage against consideration to be paid by the wife or by another person.

2. Judicial separation: This can be done for the following reasons: Separation on account of defects: In case one of the spouses finds in the other a deep-rooted repulsive or harmful defect, such as insanity or leprosy, or those preventing sexual satisfaction, such as obstruction in the genital passage or similar defects, then the spouse may seek rescission of the marriage — irrespective of whether the flaw existed prior to the drafting of the marriage contract or occurred later.

3. Separation due to non-payment of dowry: If the wife is in a non-consummated marriage and in the following instances she can seek divorce: If the husband has no apparent funds from which the dowry can be drawn. If the husband is manifestly insolvent or of unknown status and the period fixed by the judge for payment of dowry has expired without payment.

4. Separation due to prejudice and discord: Where each of the two spouses is entitled to seek divorce due to prejudice that would make the continuity of the friendly companionship between them impossible. The right of each of the spouses thereto shall not be forfeited unless their reconciliation is established.

In the case of divorce due to prejudice, the prejudice shall be established by the legal means of proof and by the court judgements rendered against one of the spouses. The hearsay testimony is accepted if the witness explained, or it was understood from his or her statement, that the prejudice is widespread in the spouses’ life, as decided by the court. A hearsay testimony to negate the prejudice is not accepted. The testimony of a male or female witness, except the testimony of an ascendant against a descendant or vice-versa, shall be accepted if the witness fulfils the conditions set forth by law for testimonial evidence. In case the prejudice is not established or proved, the case will be rejected.

5. Separation due to abstention from support: If the husband abstains from supporting his wife and he does not have enough funds from which he can pay, within a short time, the due alimony, then wife may ask separation.

6. Separation due to absence and disappearance: The wife is entitled to claim a judicial divorce due to the absence of her husband who has a known domicile or residence, even though he has funds from which alimony can be drawn. The wife of the disappeared person, whose residence is unknown, is entitled to seek judicial divorce and she will be granted relief only after investigation and search for the person and the passage of one year from the date of filing the claim.

7. Separation for imprisonment: The wife of the incarcerated, who is condemned by a decisive judgement to a penalty restraining his liberty for a period of three years or above, is entitled to ask the court, after the lapse of one year of his imprisonment, for divorce irreversibly, even though the husband may have the funds from which she can maintain her livelihood.

8. Separation for “Ila’” and “Zihar”: The wife is entitled to ask for divorce if her husband swore not to have a sexual relationship with her for four months or more, unless he re-establishes such a relationship before the expiry of the four-month time period. Divorce, in this case, is non-retractable. The wife is entitled to seek divorce on the grounds of “Zihar”.

The lawsuit shall not be admitted before the court unless it has previously been submitted to the Family Orientation Committee as per Article (16) of Federal Law No (28) of 2005 on Personal Status. The lawsuit concerning personal status shall not be admitted before the court unless it has previously been submitted to the Family Orientation Committee. This also includes matters concerning wills, inheritance, summary and provisional lawsuits concerning alimony, fostering, guardianship as well as cases that cannot be settled by conciliation such as evidence of marriage or divorce. Where conciliation between the parties takes place before the Family Orientation Committee, it shall be recorded in the minutes, signed by the parties and the competent member of the Committee. The minutes shall be approved by the competent judge, enforced as an executory deed and shall not be subject to any means of appeal except if it is in violation to the provisions of this Law.

Forming an LLC

Question: I am planning to set a Limited Liability Company (LLC) company in Dubai. According to UAE law: A) What is the number of partners required to set up an LLC company? B) What are the responsibilities of the partners towards the company creditors in case the partners are not holding personal liability?

Answer: A Limited Liability Company, as defined by Article 71 of UAE Federal Law No 2 of 2015, concerning the Commercial Companies (New LLC), came into force on July 1, 2015, replacing hitherto existing Federal Law No 8 of 1984 and its amendments concerning the Commercial Companies state: 1) An LLC is a company where the number of partners is at least two, but shall not exceed 50. A partner shall be liable only to the extent of his or her share in the capital. 2) A single natural or corporate person may incorporate and hold an LLC. The holder of the capital of the company shall not be liable for the obligations of the company other than to the extent of the capital as set out in its Memorandum of Association.

Therefore, as per the above-mentioned article, the general rule is that a shareholder in an LLC is responsible only to the extent of his or her share/shares in the capital of the company. The exception to this general rule, as the court reasoned, is that such shareholder will be personally liable if he or she exploits the principle of the independent liability of the company, conceals his or her fraudulent acts or misappropriation of the funds of the company in order to cause harm to the other partners or creditors. In such cases, the protection bestowed by law for a shareholder in an LLC will not apply and he or she will be held liable in his or her personal capacity for such disposition in a way that such liability will extend to his or her personal assets.