Cross Border Family Law: Enforcement of Divorce, Custody Orders, and Prenuptial Agreements Between the UAE and India
India Focus
Cross-border family law issues, such as the enforcement of divorce decrees, child custody orders, and prenuptial agreements, present significant challenges due to the differing legal frameworks and cultural considerations of the countries involved.
Law Update: Issue 370 - From Africa to Asia: Legal Narratives of Change and Continuity
Dipali MaldonadoSenior Counsel,Private Client Services
Ali HiedarAssociate,Private Client Services
Yara AlmouslyTrainee Solicitor,Private Client Services
Cross-border family law issues, such as the enforcement of divorce decrees, child custody orders, and prenuptial agreements, present significant challenges due to the differing legal frameworks and cultural considerations of the countries involved. This article explores the enforcement of personal status foreign judgments and prenuptial agreements between the UAE and India, examining the legal frameworks, procedural requirements, and practical implications.
UAE
Federal Decree-Law No. 42/2022 on the Promulgation of the Civil Procedure Law (UAE Civil Procedure Code)
Article 222 governs the enforcement of foreign judgments, requiring them to meet specific criteria like finality,
proper jurisdiction, and non-contradiction with UAE public policy or Islamic Sharia law.
India
Section 13 of the Code of Civil Procedure 1908 (CPC): A foreign judgment is conclusive if it meets criteria such as being final and on the merits, rendered by a competent court, and not obtained by fraud or in violation of natural justice.
Section 44A of the CPC: Allows for the execution of foreign judgments from reciprocating territories as if they were decrees passed by Indian courts.
Both require the foreign judgment to be final and conclusive.
Proper notification and due process are emphasized.
Both countries will not enforce a judgment that conflicts with their respective public policies or legal principles.
Legal Systems:
UAE: Enforcement must align with Islamic Sharia law and local public morals.
India: Enforcement is based on principles of natural justice and Indian legal standards.
Specific Legal Provisions:
UAE: Article 222 outlines a detailed verification process.
India: Section 44A deals with judgments from reciprocating territories.
Execution Process:
UAE: Involves a petition to the execution judge.
India: Requires filing an application in an appropriate court with a longer procedural timeline.
Filing a Petition: Submit a petition with a certified copy of the judgment and Arabic translation.
Court Examination: Verify jurisdiction, finality, proper notification, and compliance with UAE laws.
Issuance of Order: Judge issues an enforcement order if all conditions are met.
Filing an Application: Submit an application with a certified copy of the judgment.
Court Examination: Verify jurisdiction, finality, merit-based decision, and compliance with Indian laws.
Issuance of Order: Court issues an enforcement order if all conditions are met.
Governed by Law No. 14 of 2021 concerning civil marriage and its effects.
The Abu Dhabi Civil Family Court handles matters related to civil family cases, including prenuptial agreements.
Indian Contract Act 1872 provides the general legal framework for contracts.
Prenuptial agreements must meet criteria such as free consent, lawful consideration, and competence of the parties.
Must comply with Indian contract law principles.
Must not contravene Indian public policy.
The agreement must specify the jurisdiction governing its terms.
Full and fair disclosure of assets by both parties at the time of signing is crucial.
Nina R. Gupta v. Arjun S. Gupta (2014): Emphasized the need for full disclosure and fairness.
Kusum Sharma v. Mahinder Kumar Sharma (2015): Highlighted the importance of fairness and equity in matrimonial disputes.
Suraj Prakash v. Leelavathi (1997): Declared a prenuptial agreement unenforceable due to lack of full disclosure and presence of coercion.
Child custody and support terms.
Waiver of spousal support clauses.
Penal clauses for infidelity or other behavior.
Unconscionable terms that are excessively one-sided.
Seek independent legal advice.
Registration, although not mandatory, can provide additional evidence of validity.
Translation and notarization may be necessary for the agreement to be admissible in Indian courts.
Enforcing personal status judgments and prenuptial agreements between India and the UAE requires a comprehensive understanding of both legal frameworks and procedural requirements. While there are similarities in the emphasis on finality, proper jurisdiction, and public policy, significant differences exist in the specific legal provisions and execution processes. Proper legal representation and thorough knowledge of both legal systems are crucial for successful enforcement.
For further information,please contact Dipali Maldonado, Ali Hiedar and Yara Almously.
Published in September 2024
