Infidelity is one of the grounds for divorce and in fact it remains one of the major grounds for filing for divorce. That said, however, much depends on how infidelity can be proven before the courts.
In this article we would elucidate the various types of evidences that may be used before a personal status court in the UAE in order to establish infidelity:
- Written communication: The Federal law no. (10) of 1992 on ‘Evidence in Civil and Commercial Transactions’ and its amendments (‘Evidence Law’) allows for all form of written communication exchanged between the parties to be submitted as evidence. Parties may submit relevant text messages, whatsapp messages, emails or social media postings or messages as the relevant proof. Article 17 (4) states, ‘ Electronic writings, correspondence, registers and documents having the same probative force given by this Law to formal and informal writings and correspondence, whenever it satisfies the conditions and provisions set forth in the Law on Electronic Transactions and Commerce.
- However, due care should be accorded to the fact that the said written form of evidences are submitted to the court only when such evidence is received directly on your phone or you might have received these evidences accidentally without an ill intent of breaching your spouse’s privacy. If ill intent is not established then pursuant to Article 34 of the Federal law no. 3 of 1987 promulgating the penal code and its amendments(‘Penal Code’), ‘Unless otherwise provided for in the law, shall not be considered an attempt to perpetrate a crime, neither the mere intention to commit it nor the preparatory acts thereto’
- Recordings: Recordings taken whether as audio or video recording cannot be submitted as evidence unless the consent of the person who is being recorded can be clearly established. Pursuant to article 378 of the Penal Code when the recordings are taken without consent it would be a punishable offence. Article 378 states, ‘Shall be subject to a jail sentence and to a fine, whoever violates the private or familial life of individuals, by perpetrating one of the following acts, unless authorized by law, or without the victim’s consent:
- Captures or transmits, through any kind of apparatus, the picture of a person in a private place.
- Should the acts, referred to in the two preceding paragraph, be perpetrated during a meeting in front of the attending persons, their consent shall be presumed.
- Shall be sentenced to the same penalty, whoever publishes through any means of publicity, news or pictures or comments related to the secrecy of private or familial life of the individuals, even if correct.
- Shall be subject to a jail sentence for a period not exceeding seven years and to a fine, the public servant who perpetrates one of the acts mentioned in the present article on the strength of the authority of his position.
- The apparatuses and other objects that may have been used in perpetrating the crime shall, in all cases, be confiscated and order shall be given to erase all relative recordings and destroy same.
- Witnesses: Witnesses constitute a credible and highly important form of evidence before the courts. This is mainly so as the court can often derive an impartial understanding of the matter by hearing the witnesses and questioning them. A witness should be of 21 years of age and it is recommended that, if the party on whose behalf the witness is appearing is Muslim, the witnesses should also be Muslim. There should be either two male witnesses or one male and two female witnesses. The female witnesses are heard together while the male witnesses are heard separately. In the instance the assistance of legal translators are required the court will provide such arrangements as well.
Article 356 of the Federal law number 3 of 1987 promulgating the Penal Code and its amendments (‘Penal Code’) has been replaced by the virtue of the Federal Decree-Law No. 15/2020 (‘Amendment’). Prior to the amendment the said article criminalized adultery and read as “Anyone who indulges in an indecent crime of assault with a mutual consent shall be punished by way of imprisonment for a minimum period of 1 (one) year.” Pursuant to the amendment Article 356 has been amended and criminalizes act of voluntarily sexual intercourse only when the following conditions occur:
- Voluntary sexual molestation shall be punished with imprisonment, if the age of the victim, whether male or female, is less than fourteen years, or if the crime is committed against a person whose will is not considered credible, due to young age, insanity or dementia.
- If the perpetrator is one of the ascendents of the victim, or one of those responsible for his upbringing or care, or someone who has authority over
As discussed, certain types of evidences and practices are specifically disallowed in the UAE courts when proving infidelity. This is because the UAE laws are very stringent in terms of protection of privacy of an individual or family. It should be borne in mind that certain type of witnesses are specifically not allowed to represent the interests of a person before the court, due to their relation with the said person, such as parents. It is always advisable to obtain proper legal advise and ensure that you are not breaching any local laws.