Annulment of marriage: UAE law and English law

The provisions of family law in the UAE are contained in: Federal Law number 11 of 1992(Civil Procedure Code) amended by the Cabinet Resolutions Number 57 of 2018(Resolution 57) and number 33 of 2020(Resolution 33), Federal Law Number 28 of 2005 (Personal Status Law) amended by Federal Decree Number 8 of 2018, and Federal Law Number 5 of 1985(Civil Transactions Code). The Personal Status Law in the UAE applies for child custody, maintenance and guardianship, marriage, and divorce. It is based on the Sharia Law, which is the interpretation of the Quran and applies to the seven (7) emirates for Emiratis and non-Emiratis nevertheless, according to article 1 of the Personal Status Law, non-Emiratis can choose their own country’s law. In this article, we will underline the annulment of marriage in the UAE law (1) and English Law (2):

 

1. Annulment of marriage in UAE Law

The terms “annulment” and “divorce” are different, but both relate to marriage contracts. A divorce proceeding applies to a valid marriage in all parts and needs to be dissolved through the process of law. On the other hand, annulment of the marriage contract is the legal procedure by which the marriage itself is stated null and void. To declare the annulment of a marriage, first, there is necessary a valid marriage, and the legal requirements for the validity of a Muslim marriage are:

• A marriage agreement must be registered in a Sharia Court in the UAE
• The lawful age for a Muslim marriage is 18 Hijri years, but it is possible a special approval from the judge before the wedding to get married before the age.
• The age for a spouse must not have more than twice the age of the other individual. If this is so, the couple must obtain special approval from the judge before the marriage.
• The certificate of “premarital screening.”
• The couple’s attendance, the bride’s father (or his legal proxy is mandatory), and two (2) Muslim male witnesses are mandatory.
• The consent of the couple because a forceful marriage is not allowed in Islam. When permission to the marriage is obtained by fraud or force, the union is apprehended as invalid and against Sharia Law.
• The consent of the woman’s legal guardian is mandatory. If the woman’s father is dead, the legal guardian is the closest male kin.
• In some circumstances, it is mandatory a no-objection certificate.

Furthermore, article 38 of Personal Status Law in the UAE lays down three (3) necessary conditions for a valid marriage: 

1. The two contracting parties: as per article 39 of Personal Status Law, the “wali” of the capacitated woman must proceed with her marriage with her consent, and the authorized religious official must obtain her signature on the agreement. Any marriage agreement in the absence of a guardian is void. If the union is consummated, then the couple will be divided Consequently if a bride has no guardian, the judge will be her guardian.
2. The subject matter: The couple shall be free from any legal impediments, and there shall not be any interference to their marriage. The kinds of interruption that can make a marriage void could be polyandry, which means having more than one (1) husband at the same time, or the differences of religions.
3. Offer and acceptance: Article 41 of the Personal Status law stated that for a legal marriage, it is mandatory an offer of marriage made by one of the sides to the wedding, and simultaneously, acceptance of such proposal is obligatory. According to Sharia Law, the proposal and acceptance must be made in the presence of two (2) male Muslims who are healthy, have attained puberty age, or one male and two female witnesses who are sane adults and Muslims. The absence of witnesses does not render marriage void but make it voidable

Parental advice or parental consent is required to approve an application to get married in the UAE. Parental advice is mandatory when both or either of the candidate for marriage is/are twenty-one to twenty-five years old (21-25); nevertheless, parental consent is compulsory when both or either of the candidates for marriage is/are eighteen to twenty-one years old (18-21). A marriage without parental advice or parental consent will be considered valid until it is annulled. Annulment of a marriage agreement can only be filed on behalf of the contracting party who is between the ages of 18- 21 during the marriage, either in UAE or anywhere else in the world. Request for marriage agreement annulment cannot be filed following the concerned party reaching 21 and having liberty cohabitated with a spouse, both living together as wife and husband. A marriage will be considered approved should there be no petition that’s filed. 

In 2011, the Dubai Courts approved the issuance of a certificate for the annulment of marriage contracts between non-Muslims. The Courts allocated a judge expert in family agreement to the Documentation Section to have these certificates supplied as long as the family guidance section states them. Alternatively, the conditions for the legal validity of a non-Muslim marriage are:

• The consent of the bride
• At least one person of the partner must be a resident in Dubai (for the Emirate of Dubai).
• The premarital screening certificate.
• The marriage must be concluded at the embassy or consulate of the non-Muslim.

The UAE Law considers marriage as a legal agreement between a woman and a man which purposes to keep the rights of the couple and the children born to them. When the requirements mentioned before are not met, the marriage is considered to have never existed according to the UAE Law and becomes null and void, which means annulment of marriage.

Article 19 of the Personal Status Law defined marriage as an agreement that legitimate enjoyment between husbands, its purpose is protection and starting a stable family under the husband’s care on basis guaranteeing to the partners the assumption of its charges with affection and compassion. To prove the occurrence of any marriage, according to article 27 of the Personal Status Law, the marriage must be officially recorded. Still, in consideration of a specific act, it can be proved by other means admitted by the Law of Sharia. Case number 1032/2017 explained well article 27 of Personal Status law: the husband (the complainant) listed a divorce case against the wife (the Defendant) by providing the Marriage Certificate attested by a notary public of New York (the marriage was consummated in the United States of America). It was a Christian marriage and according to American Law; thus, her guardian did not assist to the marriage ceremony, and the dowry was never conferred. The plaintiff declared that Defendant is not obedient and starts fights on the grounds of different religions and demanded the annulment of marriage.

Before Family Guidance Committee, the parties unsuccessful resolve the dispute. Thus, the matter was listed before Personal Status Court, where Defendant submitted her defense affirming that the Courts of UAE are incompetent to provide a verdict on the concerned case. Mainly, the Court recognized that both parties are not citizens of the USA; thus, none of them demanded to apply the country’s law. Concerning Article 2(1) of the Family Law, the case will be ruled following the Family Law of UAE. Secondly, about the defense submitted by the appellant, the Court ruled that the statement of Defendant that UAE courts are not competent to give a judgment of the matter is invalid. Article 5 of the Family Law lays down that the state courts are skilled to look into the judgements of personal status filed against locals and expatriates who have a country of origin or address or place of work inside the state. Both parties were UAE residents, which means that courts have total jurisdiction to try the matter. 

Also, the Court for confirming the validity of the marriage certificate relied on provisions of the Family Law (articles 3, 4, and 27(1)) and conditions of the Civil Procedures Law (articles 3 and 12(2)). Moreover, the Court established that the basics to determine the validity of the marriage is denoted mostly to the law of each party as the time of marriage, and that means of recording the wedding as one of the official requirements of marriage, which falls in the space of application of the state where the marriage has been celebrated and that documenting the wedding is formerly by an official document issued by the judge or priest agreed by the minister of justice.

 As per Sharia principles, it is valid and essential to document the marriage in terms of witnessed by two (2) men or one (1) man and two (2) women, where it is not possible to document it by conclusive oath or even by turning it away and to evaluate the existence of a particular fact in case of non-documentation of marriage is one of the topics solely determined by the Court whenever its judgment was based on solid grounds with strong reasoning of documents. Also, it is established that the validity of the marriage cannot be determined except after showing it following Sharia Law. Additionally, the Court mentioned to Article 38 and 39 of the Family Law affirming that the guardian of an adult woman is accountable to conclude the marriage agreement for her upon her acceptance, and she must sign the contract, and the agreement must be considered null and void if signed without a guardian. In this aspect, as confirmed by the accuser, Defendant’s father did not attend the marriage. There was no discussion of dowry, hereafter this marriage is missing its pillars, and the Court rules with the refusal of the case in the manner expressed in the judgment. The Court relying on the preceding principles rejected the case and obliged the accuser to pay pertinent expenses and court charges.

 

2. Annulment of marriage in English Law

Annulment or nullity is a statement by the Court that a marriage was not legally valid or had lawfully become invalid. In English law, to apply for the annulment of the marriage, you must present a “Nullity Petition” in the Court within a reasonable period of time. The nullity falls into two (2) categories being void marriage and those which are voidable. A void marriage has never existed in law, and there is no need for a formal decree to annul it, but a voidable marriage is valid in all facets until a verdict of nullity is obtained. The grounds on which a union is voidable are:

• That the nuptial has not been consummated due to either party’s inability or due to the other party’s deliberate refusal to consummate it.
• That either party did not validly agree to it, whether in consequence of duress, mistake, unsoundness of mind, or otherwise
• When either party though accomplished of giving valid consent, was suffering from a mental disorder
• When the Defendant was suffering from venereal disease in a communicable form.
• When the Respondent was pregnant by some person other than the Petitioner.

Concerning a religious annulment, under the Catholic church guidelines, a couple will only require a church tribunal decision and not an extra confirming decision to complete an annulment. Typical cases will have annulment decided by a local archbishop. The grounds on which a religious nullity could be got are an extramarital relationship, abortion, and one party lacking religious faith. An annulment is based on the Church recognizing that marriage was never correctly entered into in the first place. A religious annulment has no lawful status in English law.

Void marriages are void from the commencement and can be treated by both parties as never having taken place, so they don’t even need to pursue a nullity from the Court. But it is advisable to get it to provide some evidence that the parties are free to get married again in the upcoming. A union that could be void from the beginning could be, for example, that one party was previously married to another, or because one party was minor at the time, or maybe they were not allowable legally to marry each other because they were related by blood. Under English Law, there are three (3) grounds on which a marriage celebrated after 31 July 1971 is void:

• the nuptial is not valid following the provisions of the Marriage Acts 1949 to 1986, for example, when the parties are within the forbidden degrees of relationship, or one of the parties is below the age of sixteen (16), or the parties have married in disrespect of certain requirements as to the formation of marriage.
• When one of the parties, at the time of the marriage, was previously legally married.
• In the event of a polygamous marriage entered into outside England and Wales, either party resided in England and Wales.

A voidable marriage is lawful unless and until a Decree of Nullity has been decided. A wedding could be voidable, for example, if one party had intentionally rejected to consummate the marriage, or if one side was enceinte by somebody different than their husband at the time of the wedding, or if one party did not give valid agreement (for example under duress). Under English Law, there eight (8) grounds on which marriage celebrated after 31 July 1971 is voidable:

The matrimonial has not been consummated due to the incapacity of either party to consummate it:

• The Court has to be fulfilled on the higher standard of proof, beyond a reasonable doubt, that the spouse was at the time of the marriage and has been after that incapable of consummating it.
• The union has not been consummated due to the determined rejection of Defendant to consummate it.
• A party did not give legal consent to the marriage, whether through duress, mistake, unsoundness of mind, or otherwise; the otherwise provision may include being under the influence of drugs.
• At the time of the wedding, either party was suffering from a mental illness.
• At the time of the wedding, Defendant was suffering from venereal illness in a virulent form.
• At the time of the union, Defendant was pregnant by another person.
• An interim gender recognition certificate under GRA 2004has, since the marriage, been issued to either party.
• The Respondent is an individual whose gender at the time of the marriage had become acquired under GRA 2004.

To file the nullity petition in the Family Court, the following documents should be filed when beginning nullity proceedings:

• The petition
• The original marriage certificate or a certified copy.
• The request is filed on the ground of the subject of an interim gender recognition certificate. The court officer shall send a notice in writing to the Secretary of State that the application has been complete.
• The request is founded on the ground that the Respondent’s gender had become acquired gender at the time of the married, except otherwise directed on a request made without notice, a copy of the gender recognition certificate.
• Notice of acting.
• The court fee or an application for exemption from fees

Either the marriage is void or voidable, if a petition for annulment is allotted, the parties can take benefit of the Court’s powers to grant financial facility, just as they can with a divorce, so it is essential to take legal guidance to explore whether you need to make a financial prerogative against your spouse when you apply for the nullity. Concerning how long the annulment will take if you are qualified and the case is accepted (both parties agree to the nullity), it will take between six (6) to eight (8) months of the procedure.

In the case Asaad vs. Kurter EWHC 3852 (Fam), the Requester was Syrian and Defendant Turkish. They were followers of the Syriac Orthodox Church. in 2006, they met in Syria and had a ceremony at the Syriac Orthodox Church in Kamishli. The parties switched rings and signed the Church’s marriage register but, the marriage failed to comply with two conditions: (i) the marriage was not recorded with the Syrian authorities, and (ii) the Ministry of the Interior did not get the permission. The Petitioner’s status continued listed as ‘single’ regarding the Syrian authorities. The parties moved to England, and they separated in 2009. The Requester said that she was enabled to a decree of divorce relying on the presumption of marriage. On her alternative case, an order of nullity, due to the ceremony which took place was a void marriage because the parties’ failure to meet some of the requisite formalities. She demanded that the parties were primary engaged in 2006 then went about placing their wedding. She asserted that the archbishop who led the wedding, the parties, and the guests all understood and intended the formality to be a legal marriage. The Requester was carried by the extensive evidence of the archbishop, who said that the wedding was a marriage ceremony and intended as such. Defendant’s case was that the ceremony was a religious blessing, and it was that which the parties designed. He also said that this ‘purely religious’ rite failed to meet the necessary legal formalities and was a ‘non-marriage.

The Court rejected Defendant’s evidence and found that the ceremony was a marriage ceremony and was intended as such by both parties and all the pertinent participants. This was reinforced by the Petitioner’s wealth of evidence to support her case, demonstrating that the ceremony was a marriage. Furthermore, it was a ceremony deemed not to be “so deficient of the character of marriage” to make it a “non-marriage” according to English law. Therefore, bar the matter of obtaining permission and registration, all other necessary formalities had been met. The rite had all the “hallmarks” of a marriage capable of conferring upon the parties’ legal status of husband and wife.

In the case, Gereis vs Yagoub 1 WLUK 119, H and W, Coptic Orthodox Christians, were married following the rites of their religion. But the marriage did not fulfill any of the conditions under the Marriage Act 1949. However, the assumption by the parties and that present was that this was an “ordinary marriage”. Finally, the couple separated, and W petitioned for annulment under s. 49(a) of the Marriage Act 1949.

Another case is El Gamal v Al Maktoum EWHC B27 (Fam), in April 2008, the parties’ relationship bore a child S. Mother (M) is 35 years old, and Father (F) is 53 years old. F is the uncle of the present ruler of Dubai and a senior member of the Royal Family. For Schedule 1 proceedings concerning S’s financial claims, F invoked the ‘millionaire’s defense’ by which he receives he can pay any order which the Court may make. The request before the Court was a petition for nullity. The fundamental issues in the case were: had there been an Islamic wedding ceremony on 11 January 2007? If so, what was its lawful effect in English law?

As to the first issue, after seeing the evidence, the Law court detained that on balance, it would receive the mother’s evidence of an Islamic wedding formality in January 2007.

 On the other issue, the Court considered s. 11 MCA 1973 and the authorities relevant to the question: when a ceremony or ritual creates a marriage, the section renders void. It makes nothing or a so-called ‘non-marriage. The rite must comply with the formal requirements of the Marriage Act 1949 to produce a marriage recognized as a marriage according to English Law. A non-marriage does happen, but it is impossible to achieve any definition. The mother’s case was that the parties’ intention to create a valid marriage for the law was the all-important factor, converting a ceremony that unsuccessful to fulfill with the Marriage Acts into a marriage, although a void one. The judge found it hard to accept that the mother would have considered the ceremony conducted secretly and with no writing as being one which would be readily recognized in, for example, Egypt. Either of the parties had done anything to prove an effort to be part of a rite set up to or purporting to comply with the official requirements of English law. In the conditions, this was not a void marriage but rather a ‘non-marriage.’ Therefore, the nullity petition was dismissed, leaving outstanding the Schedule 1 proceedings claiming support for S.

Finally, in the case Hudson v Leigh EWHC 1306 (Fam), this was a Decision concerning divorce proceedings where there was a disagreement over the validity of a marriage rite held in South Africa.

The ritual in dispute was apprehended in South Africa, where Offender, a wealthy man, had a second home. The plaintiff was a devoted Christian and wanted to have a religious ceremony, whereas Defendant, “an atheist Jew,” did not wish to participate in Church. They reached a compromise where a civil ceremony would follow a religious ceremony at their home in South Africa in England. In between the two formalities, the relationship broke down.

In this judgment, Bodey J contemplates, among other things; i) whether there is a marriage, but it is solely void, as contended by counsel for the wife, or whether there is no marriage absolutely; ii) whether the formality would constitute a marriage in South Africa. He finds that the cleric running the wedding and both parties had understood that the wedding “should positively not produce the status of marriage,” notwithstanding that guest watching the ceremony “would not have realized or suspected that they were not participating in the parties’ actual marriage.” He also broadly agrees with the counsel for the husband’s submission that it is possible to have a non-marriage rather than a void one citing the hypothetical example of a nervous couple who may perform a full-dress rehearsal with full vows but who would nevertheless not be married.