Infidelity is one of the reasons for divorce and, in fact, one of the main reasons for filing for divorce. However, much depends on how infidelity can be proven in court.
In this article we would like to explain the different types of evidence that can be used in a civil registry court in the UAE to determine infidelity:
- Written communication: Federal Act No. (10) of 1992 on “Evidence in Civil and Commercial Transactions” and its amendments (“Evidence Act”) allows all forms of written communication exchanged between the parties to be presented as evidence. The parties can submit relevant text messages, WhatsApp messages, emails, or social media posts or messages as relevant evidence. Article 17 (4) states: “Electronic writings, correspondence, registers and documents have the same evidential value that this Act gives formal and informal writings and correspondence if they comply with the conditions and provisions set out in the Electronic Commerce and Commerce Act “. . However, care should be taken to ensure that said written evidence is only presented to the court if that evidence is received directly on your phone or if you accidentally received this evidence without violating your spouse’s privacy. If there is no malice, according to Article 34 of the Federal Act No. 3 of 1987 on the promulgation of the Criminal Code and its amendments (“Criminal Code”): “Unless the law provides otherwise, it is not an attempt to commit a criminal offense, neither as mere intention still as a preparatory act ”.
- Recordings: Recordings, whether audio or video, cannot be presented as evidence unless the consent of the recorded person can be clearly established. According to Section 378 of the Criminal Code, admission without consent would be punishable by law. Article 378 states: “Prison and a fine are punishable by fines who violate the private or family life of a person by doing any of the following, unless permitted by law or without the consent of the victim:
- When he lends his ear, he is using any device to record or transmit conversations in a private location or over the phone or other device.
- Captures or broadcasts an image of a person in a private location through any type of device.
- If the actions mentioned in the two preceding paragraphs are committed during a meeting in front of the people present, their consent is presumed.
- The same penalty will be imposed on anyone who publishes messages or pictures or comments in any way that relates to the private or family secrets of the persons, even if they are correct.
- A civil servant who commits any of the acts mentioned in this article on the basis of the authority of his office shall be punished with a prison term of up to seven years and a fine.
- The apparatus and other objects that may have been used in the commission of the crime are to be confiscated in any case and it is to be ordered that all associated records be erased and destroyed.
- Witnesses: Witnesses are credible and very important evidence in court. This is mainly because the court can often derive an impartial understanding of the matter by hearing the witnesses and questioning them. A witness should be 21 years of age and it is recommended that if the party on whose behalf the witness appears are Muslim, the witnesses should also be Muslim. Either two male witnesses or one male and two female witnesses should be present. The female witnesses are heard together, the male witnesses separately. In the event that the help of legal translators is required, the court will also make such arrangements.
Article 356 of Federal Law No. 3 of 1987 promulgating the Criminal Code and its amendments (“Criminal Code”) was replaced by BG No. 15/2020 (“Amendment”). Before the amendment, the said article criminalized adultery and read as follows: “Anyone who by mutual consent commits an indecent crime of bodily harm will be punished with a prison sentence of at least 1 (one) year.” According to the amendment, Article 356 was amended and provided Voluntary sexual intercourse is only punishable under the following conditions:
- Voluntary sexual harassment is punishable by imprisonment if the victim, regardless of whether male or female, is less than fourteen years old or if the crime is committed against a person whose will is due to youth, mental illness or dementia.
- When the perpetrator is one of the victim’s ancestors or someone responsible for their upbringing or care, or someone who has authority over the victim
As mentioned earlier, certain types of evidence and practices are expressly prohibited in the UAE courts in proving breach of trust. This is because the laws of the UAE are very strict when it comes to protecting the privacy of any person or family. It should be noted that because of their relationship with that person, such as parents, certain types of witnesses are expressly ineligible to represent a person’s interests in court. It is always wise to seek appropriate legal advice and to ensure that you are not breaking local laws.