The country’s highest court has ruled that orders obtained by a husband in divorce proceedings in a Dubai court did not preclude his wife from pursing property and spousal maintenance applications in Australia.
In Clayton v Bant, the High Court found that the rights of the wife under the Family Law Act continued to be available because the foreign judgement had not finally determined those issues.
The facts
An Australian lady married a gentleman from Dubai in 2007 in a Sharia court in Dubai.
A child was born to the couple in 2009.
During the marriage, the parties lived in both Dubai and Australia. The husband owned real property in Dubai and around the world. Both parties owned real property in Australia.
The couple separated in 2013. At the time, the family was living in Australia. Upon separation, the husband returned to Dubai while the wife and child continued to reside in Australia.
Wife commences Australian proceedings
Later that year, the wife instituted proceedings in the Family Court of Australia -seeking parenting orders. That application was later amended to include property and spousal maintenance orders.
Husband commences proceedings in Dubai
In 2014, the husband commenced divorce proceedings in the Personal Status Court of Dubai. He also sought the extinguishment of all other marital rights of the wife.
A year later, the Dubai court granted the husband an “irrevocable fault-based divorce.” This meant that the marriage was dissolved and the wife could not seek property orders under the law of Dubai. The Dubai court also made an order that the wife pay the husband AED $100,000. This corresponded to a “deferred” dowry payment the wife had agreed to pay the husband upon death or divorce in a written contract at the time of their marriage.
Husband seeks stay of Australian proceedings
Responding to the wife’s Australian application, the husband applied to the Family Court of Australia to have the property settlement and spousal maintenance proceedings permanently stayed. He relied on the principles of res judicata and cause of action estoppel.
Decision of single judge of Family Court
At first instance, Hogan J dismissed the husband’s stay application.
Her honour found that in relation to the property settlement proceedings, the Personal Status Law of the United Arab Emirates (unlike the Family Law Act) made no provision for altering the interests of the parties in real property located outside the United Arab Emirates.
As to the spousal maintenance proceedings, the trial judge found that the law of Dubai only provided a limited right of alimony and that the Dubai court did not, in fact, deal with the wife’s rights to alimony.
The husband appealed to the Full Court of the Family Court of Australia.
Full Court overturns single judge decision
The Full Court unanimously allowed the husband’s appeal and ordered that the property and spousal maintenance proceedings be permanently stayed.
Their honours, took the view that:
High Court takes different approach
Special leave was granted to the wife to appeal to the High Court.
Unanimously allowing the wife’s appeal with costs, the High Court held that the Dubai court determination could not give rise to a res judicata because the right to seek orders for property and spousal maintenance orders under section 79 and section 74 of the Family Law Act could only “merge” in the final judicial orders of a court having jurisdiction under the Act to make such orders (and the Dubai Court did not have such jurisdiction).
Keifel CJ, Bell & Gagelar JJ stated:
“26. Once it is appreciated that the rights in issue in the property settlement proceedings and in the spousal maintenance proceedings are the statutory rights of the wife to seek orders under ss 79(1) and 74(1) of the Act, it is apparent that the ruling made by the Dubai Court cannot give rise to a res judicata in the strict sense in which that term continues to be used in Australia[31]. The rights created by ss 79(1) and 74(1) cannot “merge” in any judicial orders other than final orders of a court having jurisdiction under the Act to make orders under those sections. The rights of the wife to seek orders under ss 79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted[32].”
Their honours took the view that:
The High Court also confirmed that the common law doctrine of estoppel continued to apply to proceedings under the Family Law Act.
“27. For the ruling made by the Dubai Court to preclude the wife from pursuing the property settlement proceedings and the spousal maintenance proceedings, that preclusion can occur, if at all, through the operation of the common law doctrine of estoppel. No argument is made that the operation of that common law doctrine is excluded by the scheme of the (Family Law) Act.”
Other useful cases
Other family law cases that deal with inter-country disputes include:
Some words of warning