Tim Elliot: Hello. Welcome to Lawgical, wherever you are listening. This is the regular weekly podcast from the Dubai-based law firm, HPL Yamalova & Plewka, still, the Gulf Region’s first and only legal podcast. I’m Tim Elliot. I’m here with the firm’s Managing Partner, Ludmila Yamalova, high up in JLT – Jumeirah Lakes Towers. We are basking in the glorious winter sunshine of Dubai in 2020. Ludmila, good to see you.
Ludmila Yamalova: Good to see you too, and happy New Year.
Tim Elliot: Lawgical is a weekly opportunity to consider legal questions particular to where you and I both currently live, the United Arab Emirates. Of course, wherever you are, you are welcome to get in touch for legal answers. The best way to find us is via Lylawyers.com. In this edition, Federal Decree #10 of 2019 and that is the new domestic abuse law. Now Ludmila, this is a first in U.A.E. legal terms. It’s the first law of its kind which addresses domestic abuse independent of any other general law. Let’s start with an overview, if you would, of what the law sets out.
Ludmila Yamalova: Sure. Number one, the title of the law, it’s the law, Protection Against Domestic Abuse Law and Federal Decree #10, as you said, of 2019. Interestingly enough, the law was actually published in the Official Gazette back in August of last year, but it hasn’t really quite gotten much media coverage or public coverage. Yet, it’s an incredibly important law because, as you rightfully said, it is truly one of a kind, and one of its kind, and that is to have a law that’s dedicated exclusively to domestic abuse and obviously protection against domestic abuse. Now, although the law is now specifically in the books, it’s not to say that previous to this law there wasn’t a way to punish domestic abuse. It was in fact punishable even before, but it was punished and addressed under the penal code or the U.A.E.’s criminal law, so it was not specifically dealt with. Now as per this law, domestic abuse, in addition to the criminal, is now also punishable as per this law. The two laws are not mutually exclusive. This law adds on and further qualifies what constitutes domestic abuse to the criminal law.
Now with regards to its purpose, the purpose obviously is, as the title suggests, to prevent domestic abuse, but also to protect the sanctity of life, and to correct behavior that is harmful to the family unit and women and children. That is paraphrasing the law’s own mission or objective.
With regards to the definition of domestic abuse, and this is very important, and in a way groundbreaking, domestic abuse is defined as any act, saying, harm, threat, offense that is committed by a member of the family against another member of the family that exceeds their guardianship authority or responsibility. Even more interestingly and truly is groundbreaking is that the law categorizes domestic abuse into four types: (1) Physical harm, (2) emotional and mental harm, (3) sexual harm, including harassment and assault, and then (4) financial harm. Just those four categories specifically addressed in the law are truly groundbreaking, particularly in the context of a society where, for example, a lot of the family issues dealt under Sharia. For example, financial support of family members is also covered under Sharia, and we see and hear a lot of complaints and grievances that relate to denial of financial support to family members. As per this law now, any of those kinds of acts are also considered to be domestic abuse, and this is truly important. They are therefore punishable under this law. Also, think about it, sexual harm or sexual assault and harassment is now specifically categorized as being domestic abuse and therefore is punishable under this law. That too is culturally very groundbreaking because there haven’t really been specific laws addressing this kind of harassment and how they should be dealt with.
Now even more interesting is the way the law defines family and what is domestic abuse and how far down the family chain do you go to be able to seek protection under this law. The way the law defines family is anything, including a husband, wife, their children, grandchildren, children of their spouses, parents, parents in law, and also relatives to the fourth degree, or children in the family’s custody as is defined in the law. As you can see, the law is very specific in terms of showing examples of who falls under this law and then also in its broad reach in terms of victims being able to seek protection against extended family members.
Tim Elliot: Domestic abuse, we now have an official legal definition of here, in the United Arab Emirates. There is one thing I wanted you to just clear up, if you would. Any act committed by any member of the family against any other member of the family exceeding guardianship authority or responsibility, could you give an example of excessive guardianship or responsibility?
Ludmila Yamalova: Sure. For example, you can imagine how someone who has custody of children or guardianship of children perhaps wants to discipline them physically and how someone could argue that they were acting within their custodial rights or guardianship rights when they discipline that child. Now the law provides an avenue for victims to argue inflicting physical harm exceeds one’s authority or responsibility and therefore cannot be used as a defense.
Also, another example is the financial harm. You can see how someone denying financial support to a family member, particularly elderly members of the family, be it parents or parents in law. Now those particular acts are now protected under the law, and this is quite significant because we often see grievances and complaints of people that have gone through either a divorce or even just in current familial situations where a spouse, child, or parent complain that they do not have sufficient financial support to be able to exist or where, for example, the father is denying financial support to the children. This again, obviously within reason, can now also be claimed as domestic abuse under this law if obviously the parent is denying financial support to, for example, the children and either the wife or ex-wife in support of those children to the point where the family could claim that they do not have sufficient means to exist. Not only is this now a divorce matter, but it is clearly a crime, and until then denying financial support wasn’t really covered under the penal law.
Tim Elliot: The realization of domestic abuse, facing up to domestic abuse is one thing, but reporting domestic abuse is something else entirely. Fear of retribution by somebody accused is obviously something right at the mind for a person who’s suffered abuse. What’s the law in terms of protection for those who do suffer domestic abuse at the hands of another family member?
Ludmila Yamalova: One, and this is outside of my legal jurisdiction, the issue that we know victims often face is more psychological or mental and emotional, and that’s really where they should seek professional help. There are many victims that live in these abusive relationships and even knowing that the law exists now will not necessarily help them come forward, so they truly would benefit tremendously from seeking professional help that will help them find the courage to deal with these kinds of matters and be able to bring them to light and disclose them. But from the legal perspective, the law offers or introduces yet another novel legal concept and that is what is called a protection order, which in legal terms is similar to what is otherwise known as an injunction, and that is the ability for a public prosecutor and a court to issue an order preventing somebody from not doing something, in other words, preventing an abuser from contacting the victim, for example, or not just contacting the victim but even going and attending certain events and places where the victim may spend time. The law is actually quite specific about that. This is really important because such legal recourse does not really exist under the U.A.E. legal system in general and that is the ability of a court to prevent somebody from doing something. The court doesn’t usually issue orders prohibiting, for example, someone from doing something. But in this case now there is an opportunity, there is a mechanism that the authorities have, to issue orders prohibiting someone from contacting the victim. That’s truly a groundbreaking concept.
Now with regards to the penalties, if you violate this protective order there is a penalty of three months of imprisonment. That is quite serious. Then in addition to that, in addition to the imprisonment, there is also and/or an option of imposing a fine on the abuser. The fine can range from 1,000 dirhams to 10,000 dirhams. That is in the context of the protective order. Now if the protective order is violated more than once, then the penalty can be doubled and that means the prison sentence can be doubled as well as the financial fine can be doubled.
Now once somebody has been ordered to have committed domestic abuse, and this is in addition to or separate from the protective order, then the court can issue a punishment of imprisonment of six months and/or a fine not exceeding 5,000 dirhams. If the crime is committed again within a year from the last crime, then the court must double the punishment. All in all, it could be a punishment of up to a year in prison and 10,000 dirhams in fines.
Tim Elliot: Does the law offer anything in terms of mediation? Say, for example, in the case of financial harm? You mentioned financial harm earlier, and possibly more importantly, does the law say anything in terms of counseling for abuse victims?
Ludmila Yamalova: The law does provide for mediation. In fact, it makes it mandatory. That is, whenever a complaint is being brought, in this case to a public prosecutor, the public prosecutor has the obligation to try to mediate. Now the option of mediation is quite similar to many other family issues that are being addressed in courts here and that is usually, for example, in divorces the court employees always mediate or try to schedule a mediation, or two or three sometimes, between the parties to see if matters can be resolved in other ways. Meditation again is being introduced here as a step in the process and in fact it is an obligation for the authorities to try to mediate.
Now in terms of counseling, the law doesn’t specifically state that counseling is required, but certainly the hope is, and I would imagine the authorities, the courts in particular, will have the authority to issue those kinds of remedies as the time goes on.
Tim Elliot: The law highlights that domestic abuse is to be taken very seriously. It’s an issue that really needs to be brought out into the open. It’s an international problem. All too often issues like this are cloaked in family secrecy, particularly in more conservative cultures. I know this is a subject that you really wanted to tackle in a podcast. That’s why we’re talking about this today. But just really, Ludmila, final thoughts on the introduction of the law?
Ludmila Yamalova: It’s actually a lot more applicable and a lot more relevant to so many more people than I ever thought it would be. For example, we see an increasing number of divorce matters. This is not unexpected given the U.A.E. is an expat community and so many families move here and then find out that their circumstances have changed and they try to go separate ways, and (1) because this is not their home turf, and (2) so many of the families here are so incredibly multilayered in terms of nationality, citizenship, cultures, religions, they’re very, very mixed and so when the time comes to try to legally separate and go their separate ways it becomes extremely difficult because, for example, something as perhaps simple in other jurisdictions as a choice of law can become a very protracted issue in the legal separation, and in the meantime you have children and you have parents that are fighting and bickering. What we’ve seen is such things such as cutting financial support is often used as leverage quite quickly in the process. Also, the emotional harm, there is a lot of emotional, perhaps guilt trip or bullying that often, sadly, moves on from between the parents to the children, at least kind of spills over into the children’s realm. You can see there’s potential for a lot of emotional damage and suffering in these kinds of proceedings. The hope is that, let’s say in that particular case when parents do separate, that they now know of this law and they keep it in mind because one or the other parent or even the children can claim this law to perhaps bring a little more civility into the home and into ultimately the divorce proceedings. A very, very important law and hopefully this will lead to – this is the idealist in me – more amicable separations and more amicable ways of resolving family disputes.
Tim Elliot: Ludmila Yamalova is the Managing Partner of the Dubai-based law firm, Yamalova & Plewka. As ever, we really appreciate your expertise.
Ludmila Yamalova: Always a pleasure to be chatting with you, Tim. Thank you.
Tim Elliot: That’s another edition of Lawgical, this time considering Federal Decree #10 of 2019, the U.A.E.’s new domestic abuse law. Now we can’t cover every aspect of the U.A.E.’s legal world in each episode, but if there’s a legal question you’d like answered find us via LYLawyers.com or any of our social channels, and we’ll try to answer it in a future episode of Lawgical. For a legal consultation, hit the Contact button at Lylawyers.com or WhatsApp direct 00971 is the country code, 52 525 1611.
